Category: Courts and the administration of justice

Clause 59 and ‘TwitterJokeTrial’ – a warning from history

Spring Equinox, 2021

 

Some of those defending clause 59 of the Police, Crime, Sentencing, Courts and Anything Else the Government Can Get Away With Bill point out that one purpose of the provision is to set out in statute the old common law offence of public nuisance.

The view is that the enactment is merely an exercise in modernisation and simplification – that there is nothing for us to worry our heads about.

And as this blog has already explained, part of the origin of the proposal is a Law Commission report from 2015.

But.

There is a law more powerful than any statute or common law right, more powerful even than any great charter.

And that is the law of unintended consequences.

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Here is a story.

There was once an obscure provision in the Post Office (Amendment Act) 1935 that, in turn, amended the Post Office Act 1908:

And for seventy years the offence was hardly noticed, though it was reenacted from time to time as telecommunications legislation was, ahem, modernised and simplified.

Then in 2003 it was reenacted yet again, but in terms that (without any proper consideration) ended up covering the entire internet:

But it was still not really noticed.

Until one day some bright spark at the crown prosecution service realised the provision’s broad terms were a prosecutorial gift in the age of social media.

This resulted in the once-famous TwitterJokeTrial case and its various appeals, which ended with a hearing before the lord chief justice.

In allowing the appeal against conviction, the lord chief justice said:

In other words: the intention of the 2003 reenactment had not been to widen the scope of the offence in respect of fundamental freedoms.

(Declaration of interest: I was the appeal solicitor before the high court in that case.)

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Coming back to clause 59, it may well be that the intended effect of clause 59 is to merely restate the existing law.

Some are convinced by this view: 

But.

What we will have, once enacted, will be an offence – that is, an arrestable and chargeable offence – which, on the face of it is in extraordinary broad terms, using such everyday language as ‘annoyance’.

It may be that the higher courts will, as any appeals come in, apply the technical meaning in property law of ‘annoyance’.

The law in practice is not that (only) of the judgments of the high court and above: it is what police officers and crown prosecution service case workers believe the law to be and see the law as it is set out.

It is also can be what zealous complainants to the police say it to be.

And none of these people will – understandable and perhaps rightly – be well versed in the case law of ‘annoyance’ in respect of the old law of public nuisance.

They will just see an arresting and charging power – and a power to set conditions.

So it should not be left to the courts ‘to apply the old caselaw’.

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Criminal offences – and their limits – need to be clear and precise to everyone involved: citizen, complainant, arresting officer, crown prosecution service case worker, busy junior legal aid solicitor giving advice on plea – as well as to erudite barristers and even more erudite judges.

And so: even taking the point about this being a mere modernisation and simplification at its highest, clause 59 currently contains worryingly wide drafting.

Most people reading clause 59 by itself will believe there is a criminal offence – with a sentence of up to ten years – for causing mere annoyance.

Even if that it not the government’s intention, that is how the current provision can be read.

And because of this, people may suffer the life-changing events of being arrested and being charged – and may even plead guilty.

Unless, of course, that is the government’s real intention.

***

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Whoopsie: the government did not get the commission report on judicial review that it was hoping for

 19th March 2021

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‘Toulouse’s suggestion was not what Audrey wanted to hear.’

– Moulin Rouge

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Sometimes – just sometimes – in the world of law and policy there are moments when welcome things do happen.

Back in August 2020 this blog covered the government’s announcement of an ‘independent panel to look at judicial review’.

It did not seem a promising move: just an attempt by the government to find cover for an assault on judicial review by means of a hand-picked commission.

But.

It is sometimes strange how things turn out.

The commission has now reported – and just a skim of the report shows that the government did not get the report it was hoping for.

In large part, the report appears to be an affirmation of the current position of judicial review – with minor changes that it is hard to feel strongly about.

(A close read of the report may dislodge this happy impression – but that is this blog’s preliminary view.)

The concluding observations of the report could have even be a post on this very blog:

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In receipt of the report, the Ministry of Justice decided that it would try harder to find people to tell them what they wanted to hear.

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‘We want to keep this conversation going.’

We can bet they do.

Like a frustrated news show producer who cannot find any talking-head expert to say the desired things, the Ministry of Justice is now resorting to a Vox Pox.

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At bottom, the problem here is a mismatch, a dislocation – such as those recently discussed on this blog.

The discrepancy is between the heady rhetoric of ‘activist judges’ – a rhetoric that has a life of its own – and the mundane reality of what actually happens in courts.

The commission, to their credit, looked hard and reported on what they saw.

Yet those Ministry of Justice, to their discredit, want to keep on until they are told what they want to hear.

Perhaps the Ministry of Justice will get what they want – and then move to limit judicial review.

One can never be optimistic about law and policy for very long, and the illiberals and authoritarians are relentless.

But this report is a welcome break from the push towards populist authoritarianism in our political and legal affairs.

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For a more detailed account of the just-published report, see Paul Daly’s blogpost here.

***

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What now stands between a populist authoritarian government with a huge majority and a full scale assault on civil liberties and human rights?

 18th March 2021

Earlier this week the house of commons passed the government’s illiberal Police, Crime, Sentencing, and Courts Bill with a ninety-six majority.

So given this high majority the obvious question is what would actually stop or hinder a populist and authoritarian government from seeking to pass primary legislation that would remove or undermine basic legal protections and rights? 

This is not a trivial or academic question.

The usual ‘gatekeepers’ that would prevent a government from not even proposing such things are no longer in place.

For example, the offices of lord chancellor and attorney-general are occupied by politicians who happen to be lawyers but have no credentials in protecting either the rule of law or fundamental freedoms.

And we have a government heady with ‘will of the people’ rhetoric that has developed a taste for attacking or disregarding what checks and balances the constitution of the United Kingdom has to offer.

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In constitutional theory, the next check – once legislation is proposed – is the house of commons.

But with such a large majority – and the tendency for even supposedly ‘libertarian’ government backbenchers to vote in accordance with the whip and accept limp front-bench assurances – there is no realistic way that the house of commons is any check or balance on this government.

And if the opposition do oppose – which cannot be assumed, given the official opposition’s habit of not opposing things for tactical and strategic reasons – then such opposition can and will be weaponised by hyper-partisan ministers and their media supporters.

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Next there is the house of lords, where (fortunately) the government does not have an in-built majority.

And the house of lords can vote things down and pass amendments.

But.

When constitutional push comes to political shove, the house of lords will usually backdown once the house of commons has reaffirmed its support for a measure.

This is in part that the the house of lords has a, well, constitutional disability in respect of confronting the democratic house.

There will only be a few occasions where the house of lords will use its power to delay legislation under the parliament acts.

And that power is that: to delay.

A determined government, with the support of the house of commons, will get its legislative way in the end.

A government in these circumstances would not even need to resort to an ‘enabling act’ – as it would get through any desired illiberal legislation anyway.

There are a very few exceptions to this: such as a bill containing any provision to extend the maximum duration of a parliament beyond five years.

But otherwise: there is nothing that can ultimately stop an illiberal bill eventually becoming an act of parliament.

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And then we come to the courts.

Here we have another problem.

Because of the doctrine of parliamentary supremacy there is nothing that the courts would be able to do – as long as the government has ensured that the statutory drafting is precise and tight.

The human rights act, for example, provides no legal basis for an act of parliament to be disapplied.

The judgments of the European court of human rights are not binding.

The European communities act, which did enable a court to disapply an act of parliament on certain grounds, is no longer part of domestic law.

‘Common law rights’ capable of frustrating an act of parliament exist only in undergraduate law student essays.

Even with the powers the courts do have, the government is seeking to limit access to judicial review by all possible means: in substantive law, by procedural restrictions, and by denying legal aid.

(And the courts have taken an illiberal turn anyway: and we now have a president of the supreme court, in an unanimous judgment, telling the court of appeal off for not according ‘respect’ to a home secretary’s assessments.)

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Before the general election of December 2019 we had the unpleasant predicament of a government that was populist and authoritarian – but at least it did not have a parliamentary majority.

Now, by reason of that general election and its result, we have a government with the same illiberal instincts but with all the sheer legal force of parliamentary supremacy at their disposal.

That the opposition parties facilitated an early general election in December 2019 was a moment of political madness.

And now – until at least December 2024 – we have a government that is able with ease to get the house of commons to pass the most illiberal legislation – and there is ultimately nothing that either the house of lords or the courts can do – as long as the legislation is precise and tight.

Brace, brace.

***

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The problem of the dislocation between political language and policy substance

17th March 2021

The problem of political language not being tied firmly to particular meanings is not a new one:

‘From where Winston stood it was just possible to read, picked out on its white face in elegant lettering, the three slogans of the Party:

WAR IS PEACE

FREEDOM IS SLAVERY

IGNORANCE IS STRENGTH’

Indeed, it is no doubt a problem as old as political discourse itself.

But the fact that it is not a novelty does not make it any less irksome.

And nor does it mean that its instances should be left unremarked.

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Currently there is a severe dislocation between political words and things.

Those ‘free speech warriors’ who decry ‘cancel culture’ often seem at ease with a government putting forward legislation that is capable of prohibiting any form of effective protest.

There are also the ‘classical liberals’ who commend ‘free trade’ who are in support of Brexit, which is the biggest imposition of trade barriers on the United Kingdom in modern history – and has even led to a trade barrier down the Irish Sea.

And there are the champions of the liberties under Magna Carta and of ‘common law rights’ who also somehow support restrictions on access to the court for judicial review applications and sneer at imaginary activist judges.

Like a gear stick that has come loose, there seems no connection between the political phrases and the policy substance.

But the phrases are not meaningless – they still have purchase (else they would not be used).

The phrases are enough to get people to nod-along and to clap and cheer.

It is just that they are nodding-along and clapping and cheering when the actual policies then being adopted and implemented have the opposite effect.

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Can anything be done?

An optimist will aver that mankind can only bear so much unreality – and that people will realise they have been taken in by follies and lies.

That, for example, Americans will realise that politicians who seek support to ‘make American great again’ have made America anything but.

Or that those who said they would ‘get Brexit done’ have instead placed the United Kingdom in a structure where Brexit will be a negotiation without end.

Or there will be a realisation that a government is seeking greater legal protections for statues than for actual human beings.

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A pessimist will see the opposite – that the breakdown of traditional media and political structures (with traditional political parties and newspapers seeming quaint survivors from another age) – means that it will be harder to align words with meanings.

Meaning the dismal prospect of liberals and progressives having to also adopt such insincere approaches so as to counter and defeat the illiberals and authoritarians.

Whatever the solution, it needs to come rather quickly – at least in the United Kingdom – as the current illiberal and authoritarian government is in possession of a large parliamentary majority and is showing itself willing and able to push through illiberal and authoritarian laws and policies.

While pretending to itself and others that it has ‘libertarian instincts’.

And so it may not just be the gear stick which has come loose but also the brakes as well.

Brace, brace.

***

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The European Commission launches legal proceedings against the United Kingdom – a guided tour

 16th March 2021

The European Commission announced yesterday that it had ‘launched legal proceedings’ against the United Kingdom.

What has happened is that a formal legal notice has been sent by the European Commission to the United Kingdom.

To say this is ‘launch[ing] legal proceedings’ is a little dramatic: no claim or action has been filed – yet – at any court or tribunal.

But it is a legally significant move,  and it is the first step of processes that, as we will see below, can end up before both a court and a tribunal.

This blogpost sets out the relevant information in the public domain about this legal move – a guided tour of the relevant law and procedure.

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Let us start with the ‘legal letter’ setting out the legal obligations that the European Commission aver the United Kingdom has breached and the particular evidence for those breaches.

This is an ‘infraction’ notice.

As the European Commission is making some very serious allegations – for example, that the United Kingdom is in breach of the Northern Ireland protocol – then it is important to see exactly what these averred breaches are.

This information would be set out precisely in the infraction letter – informing the ministers and officials of the United Kingdom government of the case that they had to meet in their response.

But.

We are not allowed to see this letter.

Even though the European Commission is making serious public allegations about the United Kingdom being in breach of the politically sensitive Northern Ireland Protocol, it will not tell us the particulars of the alleged breaches.

This is because, I am told, the European Commission does not publish such formal infraction notices.

There is, of course, no good reason for this lack of transparency – especially given what is at stake.

The European Commission should not be able to have the ‘cake’ of making serious infraction allegations without the ‘eating it’ of publishing them.

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And so to work out what the alleged breaches are, we have to look at other, less formal (and thereby less exact) sources.

Here the European Commission have published two things.

First, there is this press release.

Second there is this ‘political letter’ – as distinct from the non-disclosed ‘legal letter’.

What now follows in this blogpost is based primarily on a close reading of these two public documents.

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We start with the heady international law of the Vienna Convention on the law of treaties.

Article 26 of the Vienna Convention regards the delightful Latin phrase Pacta sunt servanda.

In other words: if you have signed it, you do it.

Agreements must be kept.

You will also see in Article 26 express mention of ‘good faith’.

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We now go to the withdrawal agreement between the United Kingdom and the European Union.

There at Article 5 you will see that the United Kingdom and the European Union expressly set out their obligation of good faith to each other in respect of this particular agreement:

So whatever ‘good faith’ may or not mean in a given fact situation, there is no doubt that under both Article 26 of the Vienna Convention generally and under Article 5 of the withdrawal agreement in particular that the United Kingdom and the European Union have a duty of good faith to each other in respect of their obligations under the withdrawal agreement.

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The European Commission not only allege that the United Kingdom is in breach of its obligation of good faith but also that the United Kingdom is in breach of specific obligations under the Northern Ireland protocol (which is part of the withdrawal agreement).

The press release says there are ‘breaches of substantive provisions of EU law concerning the movement of goods and pet travel made applicable by virtue of the Protocol on Ireland and Northern Ireland’.

The ‘political letter’ says:

So it would appear that the relevant provisions of the withdrawal agreement are Articles 5(3) and (4) of the Northern Ireland and Annex 2 to that protocol.

Here we go first to Annex 2.

This annex lists many provisions of European Union law that continue to have effect in Northern Ireland notwithstanding the departure of the United Kingdom.

Article 5(4) of the protocol incorporates the annex as follows:

‘The provisions of Union law listed in Annex 2 to this Protocol shall also apply, under the conditions set out in that Annex, to and in the United Kingdom in respect of Northern Ireland.’

As such a breach of Article 5(4) is a breach of the European Union laws set out in that annex.

Article 5(3) of the protocol is a more complicated provision and it is less clear (at least to me) what the European Commission is saying would be the breach:

My best guess is that the European Commission is here averring that the United Kingdom is in breach of the European Union customs code (which is contained in Regulation 952/2013.)

As regards the specific European Union laws set out in Annex 2 that the European Commission also says that the United Kingdom is in breach of, we do not know for certain because of the refusal of the commission to publish the formal infraction notice.

On the basis of information in the press release and the ‘political letter’ it would appear that the problems are set out in these three paragraphs:

Certain keyword searches of Annex 2 indicate which actual laws the European Commission is saying being breached, but in the absence of sight of the formal infraction notice, one could not know for certain.

The reason the detail of what laws are at stake matters is because each instrument of European Union law may have its own provisions in respect of applicability, enforceability and proportionality that could be relevant in the current circumstances.

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So: what next.

Two things – the European Commission is adopting a twin-track, home-and-away approach.

One process will deal with the substantive provisions of European Union law – and the other process will deal with the matter of good faith.

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In respect of the alleged substantive breaches of European Union law, the European Commission has commenced infraction proceedings – as it would do in respect of any member of the European Union.

As the ‘political letter’ pointedly reminds the United Kingdom:

The United Kingdom is still subject to the supervisory and enforcement powers of the European Union in respect of breaches of European Union law in Northern Ireland.

You thought Brexit meant Brexit?

No: the government of Boris Johnson agreed a withdrawal agreement that kept in place the supervisory and enforcement powers of the European Union – including infraction proceedings of the European Commission and determinations by the Court of Justice of the European Union.

And so in 2021 – five years after the Brexit referendum – the European Commission is launching infraction proceedings against the United Kingdom under Article 258 of the Treaty of Rome:

This means there could well be a hearing before the Court of Justice of the European Union.

One does not know whether this would be more wanted or not wanted by our current hyper-partisan post-Brexit government.

One even half-suspects that they wanted this all along.

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The other track – with the European Commission playing ‘away’ – is in respect of the general ‘good faith’ obligation – as opposed to the substantive European Union law obligations under Annex 2.

Here we are at an early stage.

In particular, we are are at the fluffy ‘cooperation’ stage of Article 167:

If this fails, then the next stage would be a notice under Article 169(1):

Article 169(1) provides that such a formal notice shall ‘commence consultations’.

And if these Article 169 consultations do not succeed, then we go to Article 170:

The arbitration panel – and not the European Commission nor the European Court of Justice – would then determine whether the United Kingdom is in breach of its general obligation of good faith.

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We could therefore end up with two sets of highly controversial proceedings.

The European Commission has intimated the processes for both to take place in due course.

From a legalistic perspective, the European Commission may have a point – depending on what the alleged breaches actually are.

A legal process is there for dealing with legal breaches – that is what a legal process is for.

But.

When something is legally possible, it does not also make it politically sensible.

A wise person chooses their battles.

And if the European Commission presses their cases clumsily, then the legitimacy and durability of the withdrawal framework may be put at risk.

Brace, brace.

***

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The proposed new clause 59 offence of ‘intentionally or recklessly causing public nuisance’

15th March 2021

There is currently a bill before parliament that will, among other things, create a new statutory offence of ‘public nuisance’.

This new offence – as currently set out in the bill – is itself causing annoyance and distress.

Why is it being proposed?

And what should parliament do about it?

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Like a lamp in Aladdin – it is a new offence for an old one.

If the new offence is enacted then the current ‘common law’ (that is, non-statutory) offence of public nuisance will be abolished.

The current offence is ill-defined and rarely used – and it has been the subject of 2015 reform proposals from the Law Commission – see here.

(Of course, the fact that the Law Commission proposed reform in 2015 is not the reason why the home office have chosen to propose changes in 2021.)

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On the face of it, reform and simplification are good things.

Who could possibly oppose something as laudable as reform and simplification?

And the Law Commission does have a point – the current law is somewhat vague and archaic.

The current law is usually stated as:

‘A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.’

The bill before parliament proposes that old offence to be replaced by this:

As you will see there are elements of the current offence copied over to the new offence – and that although this is an exercise in ‘simplification’ it also happens to be rather longer.

Words like ‘annoyance’ are added.

But the new offence has not plucked the word ‘annoyance’ out of the air: annoyance can be a component of the current offence, and it has featured in case law.

The word ‘annoy’ (and its variants) is mentioned thirty-seven times in the Law Commission report.

The Law Commission summarises their view as (at paragraph 3.12):

‘One question is the nature of the right or interest which public nuisance seeks to protect.  In our view, its proper use is to protect the rights of members of the public to enjoy public spaces and use public rights (such as rights of way) without danger, interference or annoyance.’

Whatever ills can be blamed on the home secretary and the home office, the content of this proposed provision is not entirely of their creation.

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But.

Each and every piece of legislation needs to be scrutinised on its own terms – and neither parliamentarians nor the public should just nod-along because the magic words ‘reform’ and ‘simplification’ are invoked.

Never trust the home office.

And if one looks through clause 59 carefully and trace through how it works, it is potentially a chilling and illiberal provision.

For example (with emphasis added):

‘A person commits an offence if— (a) the person— (i) does an act […]  [which](b) the person’s act or omission […] (ii) obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and (c) the person  […]  is reckless as to whether it will have such a consequence. […]  (2) For the purposes of subsection (1) an act or omission causes serious harm to a person if, as a result, the person […] (c) suffers serious distress, serious annoyance, serious inconvenience or serious loss of amenity, or (d) is put at risk of suffering anything mentioned […].

The offence is thereby made out not if a person is caused ‘serious annoyance’ but only if there is a ‘risk’ of them suffering it.

And there does not need need to be any directed intention – mere recklessness will suffice.

The maximum sentence for simply putting someone ‘at risk of suffering’ serious annoyance is imprisonment for a term not exceeding ten years.

Of course, maximum sentences are maximum sentences, and in practice the penalties will be lower.

Yet, the creation of such an offence in these terms will have a knock-on effects on the powers of police to arrest and to set conditions.

And it is in the day-to-day exercises of such powers by the police that the real chill of any offence is most keenly felt – and not the ultimate sentencing power of a court.

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This provision and other provisions in the bill before parliament have the potential to greatly restrict the rights of individuals to protest – or even go about their everyday activities.

As such, such provisions should receive the anxious scrutiny of parliamentarians. 

Despite the Law Commission origins of the proposed reform – there may be plenty here that the home office have added – and for various illiberal reasons.

Members of parliament are not there to nod-along – and this particular proposal should not just be nodded-through.

***

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The ugly scenes from the Clapham Common protest tell us about wider policing problems – and how policing the coronavirus regulations is being treated as a public order matter instead of a public health problem

14th March 2021

The scenes of the policing of the protest at Clapham Common last night were ugly.

The scenes were also shocking.

By ‘shocking’ I do not mean that they were surprising and unpredictable. 

Anyone with any awareness of policing in Northern Ireland, or of the miners strike, or of inner cities and BAME communities, will not be surprised.

This is what police do – when they can get away with it.

Something can be unsurprising and predictable and still be shocking – as anyone who has licked a light socket would tell you, if they are still able to do so.

And police brutality – and their other abuses of coercive power – should always be shocking.

Once it ceases to shock then the authoritarians and illiberals will have prevailed.

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During this pandemic this tendency for the police to misuse and abuse their powers has had a further feature.

The coronavirus regulations – which restrict freedom of movement and assembly as well as other fundamental rights and freedoms – are public health measures.

But they have been enforced by the police as if they were in respect of public order.

Public health is not the same as public order.

The scenes from last night did not evidence any sincere concern for public health from the police.

Indeed – a responsible and socially distanced protest was entirely possible (and warranted) – but the police turned it into something else instead.

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These ugly scenes were then followed by ugly evasions.

Reading that ugly statement is as sickening as the scenes from the protest were ugly and shocking.

‘Look at what you made us do,’ is – in the circumstances of this protest that was prompted by the death of Sarah Everard – an especially unfortunate stance for the police to take.

Even former home office ministers – not the most liberal of politicians – were not able to stomach this.

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And in command of the metropolitan police is, of course, Cressida Dick.

How the career of Cressida Dick even survived the killing of Jean Charles de Menezes is one of wonders of recent policing history.

How her career then continued to prosper is one of its deepest disgraces.

But the police are very good indeed at deflection.

Any criticism is usually first met by being told that one does not understand the pressures of policing, and so on.

And when the wrongs are established beyond doubt, the police effortlessly switch to their bland lessons-will-be-learned assurances.

But at no point will there even be any genuine accountability and redress.

Which is kind of ironic given that the police are, well, charged with the policing the rest of us and holding us to account.

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This is not the sort of blog to comment on ongoing individual criminal cases – and this is not just because of the (outdated and inadequate) laws on contempt of court but instead because a blog is not a court room and serves a different purpose.

One purpose of this blog is to identify and explain the wider law and policy contexts of topical events.

The ugly scenes from last night can be seen as an example of police abuses of power generally and in respect of their illiberal and misconceived approach to the coronavirus regulations in particular.

The ugly doubling-down of the police this morning can, in turn, be seen as an example of their inability ever to accept that they have made operational mistakes.

And there are few – if any – official communications as misleading if not dishonest as the police PR after something has gone very wrong.

Shocking – but never surprising.

***

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Under the hood: how the United Kingdom state authorises people to commit criminal offences and then protects them from prosecution

12th March 2021

A recent court of appeal case has provided an insight into how the United Kingdom state both authorises people to commit criminal offences and then protects them from prosecution.

To show how this is done is not necessarily to condemn – or endorse – such governmental practices.

You may well believe that it is right that in certain covert operations those acting on behalf of the state should be able – as part of their cover – be able to break both the criminal and civil law for the greater good.

Or you may believe it should not be legally possible and that such things have the effect of placing state agents above the law.

In either case there is value in understanding just how it is done.

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The starting point is to know – in general terms – about the two-stage ‘code’ test for bringing criminal prosecutions.

The first stage is to determine whether there is sufficient evidence against a defendant – this is called the evidential test.

The second test – treated as a routine formality in most every-day cases – is whether, distinct from the evidential test, there is a public interest in a prosecution – this is called the public interest test.

The notion is that there is a presumption that a prosecution is in the public interest unless there is a reason why such a prosecution was not in the public interest.

And it is at this second stage that state-authorised criminals are protected from prosecution.

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But it is important to note that this protection is not a legal immunity.

Oh no, not at all, definitely not, how could you think such a thing?

The contention is that because in theory a prosecution can still occur then state agents are not technically above the law.

And placing state agents above the law would be a bad thing, and such a bad thing would never happen.

An authorisation for a state agent to break the law does not confer immunity from prosecution – it instead provides a factor which a prosecutor takes into account when making the decision whether a prosecution is in the public interest or not.

In this elaborate – and for some, artificial – form the state has both its cake and a file inside it.

State agents are protected from prosecutions for their criminal acts – but are not given immunity.

It is just that the prosecutions will not happen.

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The court of appeal case is the latest (and perhaps last) stage in an important public interest case which, among other public benefits, has led to the disclosure of hitherto secret guidance on authorising state agents to commit criminal effects.

The judgment at paragraph 14 even published a redacted version of the guidance.

One paragraph of that guidance describes the legal effect and consequences of an authorisation (which I break up into smaller paragraphs for flow):

‘9. An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution.

‘Rather, the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g. the police or prosecuting authorities.

‘In particular, the authorisation process and associated records may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.

‘Accordingly, any such authorisation should, on its face, clearly establish that the criteria for authorisation are met, in terms which will be readily understood by a prosecutor.

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To a certain extent the court of appeal case is of historic interest, because the government has now legislated to place part of this system on a statutory basis.

In the grand tradition of giving important legislation complicated and forgettable names, this is the Covert Human Intelligence Sources (Criminal Conduct) Act 2021.

This inserts the glamorous-sounding ‘section 29B – Covert human intelligence sources – criminal conduct authorisations’ into the Regulation of Investigatory Powers Act 2000, including this definition:

‘A “criminal conduct authorisation” is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.’

You will note – perhaps worryingly – that there is no limit on what criminal actions may be authorised.

And here on should bear in mind the circumstances of the murder of Pat Finucane.

(And those circumstances explain why the Pat Finucane Centre were one of the groups bringing the legal challenge.)

 

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On the face of it: murder and other serious criminal offences can be authorised by the state: there is no express limit.

But, of course, such things would never happen.

Ahem.

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Paragraph 113 of the judgment also reveals something interesting:

‘The undisputed evidence generally was that the Security Service works closely with the police in counter-terrorism operations. The evidence also reveals that there is, for example, a Memorandum of Understanding between the Security Service, the police and the Counter Terrorism Division of the Crown Prosecution Service.’

This memorandum of understanding, of course, does not seem to be in the public domain.

As a ‘memorandum of understanding’ this would be a formal, legal-looking document – complete with pompous earnest language and paragraph numbers – but it is as much an imposter as any covert agent.

The purpose of a memorandum of understanding between government entities is to have the effect of a binding agreement – but without any of the inconveniences of it actually being a legal instrument, such as transparency.

There are memorandums of understanding all over the state (and between the United Kingdom and other states) – many of which are secret – but all of which are crucial in the conduct of government and public affairs.

The court of appeal’s helpful mention of the existence of this memorandum of understanding tells us how – as a matter of process – the authorisations are in practice converted into decisions not to prosecute.

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Again: you may take the view that all this is not something to worry about and that government is doing what it has to do so as to keep us all safe.

Nothing in this post should be taken to gainsay such an entirely valid view.

The purpose of this post is to use information in the public domain so as to show how the state goes about doing what it does.

And there is even a reason to welcome the 2021 act even if one is a liberal or progressive.

The more of what the state does that is placed on a public statutory basis the better in any democratic society that values the rule of law.

So although the various public interest groups failed in their appeal, their dogged-determined litigation has led to certain things becoming public knowledge and perhaps being placed on a statutory footing that were not public knowledge before.

Just because some things should be covert it does not mean all things have to be covert.

And there is not a good reason why the ways and means by which the state authorises criminal conduct and then protects its agents from prosecution should not be in public domain – and in a democratic society that values the rule of law there is a good reason why it should be.

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EDIT

The first version of this post had a mention of the Criminal Injuries Compensation Scheme – but the point I made now appears to be incorrect – so I have deleted that section so I can consider it again.

Apologies.

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What lawyers can be blamed for – and what they cannot be blamed for

4th March 2021

My column this month at Prospect magazine is about lawyers and what they can and cannot be blamed for.

Please click here and read the column.

(Please do – the more clicks I get for commissioned pieces like that column, the more I can provide commentary on this blog for you and others.)

The rest of this post below amplifies a couple of points made in that column.

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The view I put forward in the column is neither of the usual ‘takes’ on this problem of the ages.

The first usual take is blame the lawyers for anything and everything about the law and what it does and does not do to individuals.

The second usual take – equal and opposite to the first take – is to deny that fault is ever with the lawyers and to aver that any fault is instead with the clients, or the courts, or something else.

This latter approach is sometimes the deft go-to response for lawyers seeking to evade any censure or criticism for their work.

There will be those – perhaps reading the column or this post – who are happy with either of these views and do not wish to have those settled precious positions disturbed.

My column and this post is not for them.

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The unpleasant truth is that the suffering of number of people in real life depends on just how good a lawyer is at their job.

Take for example the following cases:

  • lawyers in the United States providing the best possible legal cover for torture and the infliction of other inhumane treatment;
  • lawyers again in the United States appealing court decisions so as to ensure that a prisoner is killed before there is a possibility of clemency under a newly elected president;
  • lawyers acting for pharmaceutical companies enforcing patents so that treatments are practically unavailable for those in pain;
  • lawyers acting for insurance companies using obscure tort case law on causation so as to avoid pay-outs to those requiring compensation for medical fees,

and so on.

This is, of course, not new.

Without even affirming Godwin’s Law, one can point to the English lawyers who long provided legal cover for the slave trade.

https://twitter.com/davidallengreen/status/1271696745836228608

As a direct consequence of the dedication, skill and ability of the lawyers involved, there is (and has been) more human misery in this world than otherwise would be the case.

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Often the excuse offered for lawyer culpability is an appeal to the judge-fairy.

This is to say that it is for a court to to determine guilt or innocence, or civil liability or no liability, and not the lawyers.

 But very few cases get to court where the judge-fairy can wave a magic wand (or magic gavel, if not in England) and put everything right and just.

Almost all civil cases end in settlement.

And, if a lawyer has done their job well at early stages of a process, nobody will bring a civil claim any way, regardless of loss and damage.

Some people will plead guilty in criminal cases rather than run the risk of the consequences of a guilty verdict, regardless of their actual innocence, because of the case against them or the prosecutors employed.

And others will, because of solid legal advice, be always at least one step away from any criminal culpability.

So, no: invoking the judge-fairy is not enough.

The craft and practice of law is often in avoiding anything ever getting close to the uncertainty of a court hearing.

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But.

As I set out over at Prospect lawyers may be to blame for many things, but they are not (usually) to blame for the laws.

Lawyers and their clients can only get away with what the law – both in terms of substance and procedure – allow them to do so.

And it is often a public benefit – counter-intuitively – that those with power have good legal advice rather than bad legal advice or indeed no legal advice.

For those with power will still use that power anyway.

Perhaps this view is just to replace the judge-fairy for a legislature-fairy.

Maybe.

But it was so telling when Rudolph Giuliani could not bring himself to mislead the court for the benefit of his client Donald Trump and allege fraud.

Even Giuliani had to act within the boundaries set by legal and professional rules.

Even Giuliani.

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And in certain circumstances lawyers can even be excused their clients.

In England and Wales, as is well-known, barristers follow a cab-rank rule for cases before domestic courts (though this rule does not cover their often lucrative appearances before non-domestic courts).

This cab-rank rule, in turn, is an application of a more general approach of the law to those who provide(d) certain key services – another example is the law of common carriage and the rules that oblige(d) those who kept inns, toll-roads, ferries, bridges, and so on, to provide, in principle, a general service to all-comers.

The cab-rank rule is thereby a public good.

It ensures that everyone is entitled, in principle, to the same standard of advocacy and representation.

Yet what is less well-known is that the majority of lawyers in England and Wales – solicitors – are not under the cab-rank rule, and so can pick-and-choose clients and areas of law.

But even solicitors (of whom I am one) cannot be blamed for the law on which they advise.

Lawyers can be blamed for many things – perhaps far more than many lawyers would like to admit – but they cannot be blamed for the law.

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How the power of the home secretary to deprive a person of their United Kingdom citizenship is creating a second class of United Kingdom citizens from immigrant families

3rd March 2021

Despite modern political discourse being dominated by demands of what the ‘state’ should and should not do, there is often little in practice that ministers can do towards their political objectives.

Laws may be passed that may or may not have wanted effects; revenues can be raised and resources allocated that may or may not have any desired impact; international agreements may be made – or broken – that may or may not have certain effects; speeches can be made, and lines spun.

But a good deal of this activity and inactivity is at least one step removed from ensuring any real social and economic change (or lack of change), for government and administration is not an exact science.

And for anything that actually affect the rights of individuals, there would then be the pesky courts with their activist judges and scoundrel lawyers.

Over the last decade, however, one government department realised there were things it could do.

The home office has hit upon the one area of policy where it can make decisions that have direct social and economic consequences, but in a largely law-free way.

The home office could take people’s citizenship and residency rights away.

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Certain manifestations of this general policy approach can be seen with the Windrush scandal and in the deportation of those with certain criminal convictions.

And so on.

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Just as important as these executive actions, of course, was the threat of such executive actions.

This was not an accident – it was the design of the policy.

That policy was the ‘hostile environment’.

As the former home secretary Theresa May said candidly in a 2012 interview:

“The aim is to create here in Britain a really hostile environment for illegal migration.”

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Billboards and signs on vans are one thing, but ready and easy use of executive powers are another.

And the home office – like any addict – began to use this legal power of international displacement more and more.

The home office could do things – and (more-or-less) get away with them.

The next step from stripping people of any residency rights they may have was to deprive them, when possible, of their citizenship rights.

From removing illegal immigrants, to removing those who were from immigrant families but were in the United Kingdom lawfully and indeed were citizens of the United Kingdom.

And so this is what they did.

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The outstanding Free Movement blog has compiled this table:

According to Colin Yeo, in this detailed and informative survey of the use of the power to deprive a United Kingdom citizen of their citizenship:

‘until quite recently, the power to deprive a person of their British citizenship on the grounds of behaviour was almost moribund, having been used against perhaps a handful of Russian spies…in practice, ‘deprivation powers were not used at all between 1973 and 2002’.

The cases mentioned by Yeo will show why many might not mind many of the deprivations – unpleasant individuals who have done highly unpleasant things.

Many would even clap and cheer and shout good riddance.

But each case is also an instance of simple executive power – a ministerial decision, rather than a prior judgment by a court or tribunal – that strips a person of their citizenship of the United Kingdom – even if that person was born a United Kingdom citizen.

Under section 40 of the British Nationality Act 1981 (as amended heavily over the years), the right of citizenship of a person is entirely at the satisfaction of the home secretary.

(See this blog’s post here.)

And once the home secretary is satisfied that you should lose your citizenship then the citizenship is lost, by instant operation of law.

The person affected may seek to appeal such a decision – but they do so from the position of no longer being a United Kingdom citizen.

The decision takes effect before – sometimes long before – it can be considered by any court or tribunal.

This is what raw executive power looks like.

And the home office likes it this way.

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Because of the international law in respect of ‘statelessness’ (which this blog set out here), this executive power is usually used (or should be used) only where the person affected already has the status at law of citizenship of another country.

This means it can be used against people with dual citizenship.

And this means it can be used most readily against those who are from first or second generation immigrant families.

So there are now two classes of United Kingdom citizen.

A first class of those who have no other nationality, and so against whom the home secretary cannot (or should not) use their power to deprive them of their citizenship of the United Kingdom.

And a second class of those who will also have another nationality and so can have their citizenship of the United Kingdom instantly removed at the satisfaction of the home secretary.

These second class citizens will primarily be comprised of those from first or second generation immigrant families.

This means, in turn, that many of those affected will tend to be those from black and minority ethnic backgrounds.

On this basis, the operation of this law and policy would be discriminatory against those from black and minority ethnic backgrounds.

The very structure of this law and policy would mean it cannot work any other way.

And so a citizen of the United Kingdom – born in the United Kingdom and with no personal relationship with any other country – can have their citizenship instantly removed by a government minister without any prior judicial step just because they are from an immigrant family.

And the home office likes it this way.

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This post is part of a series of posts on the Shamima Begum case.

There is something wrong – very wrong – about the legal situation of Shamima Begum.

That is, at least on the basis of information in the public domain – which is, of course, the only information on which the public can have confidence in the relevant law and policy.

The legal case is, however, complex – at least on the face of it, with sets of legal proceedings and appeals that have resulted so far in a number of lengthy judgments by variously constituted courts.

So to get to the wrongness of this situation, this blog will be doing a sequence of posts, each on a different element of the case.

Previous posts have included:

  • initial thoughts on the illiberal supreme court decision (here)
  • the parallel of the supreme court decision with the 1941 case of Liversidge v Anderson (here)
  • the legal power of the home secretary to deprive a person of United Kingdom citizenship (here)
  • statelessness and the law and the case of Shamima Begum (here)

Further posts will show how the home office and the courts dealt (and did not deal) with important issues in this case.

The purpose of this Begum series of posts is to promote the public understanding of law.

The posts in this Begum series on this blog will be every few days, alongside commentary on other law and policy matters.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.