Category: Courts and the administration of justice

Update – what is coming up.

Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness

21st August 2024
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One striking – and troubling – aspect of the legal case of Shamima Begum is the artificiality of the United Kingdom state maintaining that she ever had the real prospect of going to Bangladesh.

The removal of her British citizenship was predicated on her being able to take the citizenship of Bangladesh, a country which she had never visited and to which she had no meaningful connection.

By way of background, this is from paragraph 1 of the relevant Court of Appeal decision:

“On 19 February 2019 Shamima Begum, then aged 19, was deprived of her British citizenship by a decision under s 40(2) of the British Nationality Act 1981 (“BNA 1981”), made personally by the then Secretary of State for the Home Department, the Rt Hon. Sajid Javid MP. Her appeal to the Special Immigration Appeals Commission (“SIAC”) was dismissed on 22 February 2023.”

Adding:

“Ms Begum was born in the United Kingdom on 25 August 1999. She was brought up in Bethnal Green in the London Borough of Tower Hamlets. Her parents are of Bangladeshi origin and, through them, Ms Begum had Bangladeshi citizenship until her 21st birthday.”

The Court of Appeal then noted:

“SIAC observed that Ms Begum’s case under this ground was straightforward: even if the deprivation decision did not render her technically stateless, it had that practical effect. One way or another, she could not go to Bangladesh, and that meant there was nowhere for her to go […].”

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We are told by the Court of Appeal that material before the Home Secretary included a reference to this effective statelessness:

“On 18 February 2019 a ministerial submission with accompanying documents was received by the Secretary of State. The submission recommended that the appellant be deprived of her British citizenship on the basis that it would be conducive to the public good due to the threat that she was assessed to pose to UK national security. […]

“One of the annexes to the submission, dealing with the potential risks to Ms Begum of mistreatment contrary to Articles 2 and 3 of the ECHR, expressed the view that although there was a risk that individuals in Bangladesh could be subject to conditions which would not comply with the ECHR, the Secretary of State may consider that there was no real risk of her returning to Bangladesh. Neither the submission nor the annexes to it expressly considered the issue which forms the basis of Ms Begum’s third ground of appeal before this court, that if deprived of British citizenship she would be “de facto stateless”.

“The Secretary of State agreed with the recommendations in the submission on 19 February 2019.”

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This was an eye-catching push-pull you point: on one hand, the Home Secretary was legally safe in taking away her British citizenship as Begum would in theory be able to go to Bangladesh but, on the other hand, he was also legally safe because in practice she could not do so.

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One of the grounds of appeal of Begum before the Court of Appeal was:

“De facto statelessness: The deprivation decision was unlawful on account of a failure by the Secretary of State to have regard to whether the decision to deprive would render Ms Begum de facto stateless on account of her de jure Bangladeshi citizenship being of no practical value to her. SIAC correctly concluded that this was a mandatory relevant consideration to which the Secretary of State was required to have regard. However, SIAC erred in finding that the matter had been properly considered.”

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In one paragraph, the Court of Appeal rejected this ground of appeal:

“It is not necessary to decide what might be difficult questions about whether the concept of “de facto statelessness” is established in international law. The point in layperson’s language is that Ms Begum had nowhere else to go. Until her 21st birthday in 2021 she had Bangladeshi citizenship by descent but there was no realistic possibility of her being able or permitted to enter that country. The appendix to the ministerial submission made this clear, though in the context of whether she was at risk of treatment contrary to ECHR Article 2 or Article 3. As SIAC found at [302]-[305], this was sufficient to bring the issue to the attention of the Secretary of State, if he did not know it already. Despite knowing that she had nowhere else to go, in all practicality, the Secretary of State nonetheless decided that to deprive her of her British citizenship on grounds that to do so was conducive to the public good and in the interests of national security. He took that matter into account. The decision cannot be impugned on the basis that he did not do so. On the basis of the open arguments applied to the evidence that we have seen in open and closed, Ground 3 fails.”

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In essence: it did not legally matter that the deprivation of her citizenship in fact (de facto) rendered her stateless, as long as (a) in legal theory (de jure) she was not stateless and (b) the minister considered this fact, and made the deprivation order anyway.

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Begum then applied to the Supreme Court.

Some thought this would be a good case for the Supreme Court to engage with this extraordinary power of the UK state to take away a person’s citizenship – in some ways a person’s most basic legal right – in circumstances where in reality they would be rendered stateless, but as a legal fiction they would not be.

It could have been a Supreme Court case for the ages.

But, no.

In their short published reasons, they decided not to hear the appeal on his and her other grounds. On de facto statelessness, they provided these three paragraphs (emphasis added):

“The fourth ground of appeal concerns the fact that the deprivation decision resulted in the Appellant’s becoming de facto stateless, as there was no reasonable prospect of her being admitted into Bangladesh, of which she was a citizen. In this regard, it is argued that the Secretary of State failed to have regard to all material considerations.

“Both courts below found on the evidence that the Secretary of State had taken into account the fact that the deprivation decision would render the Appellant de facto stateless. There is nothing to indicate that that conclusion is vitiated by any error of law. The Appellant’s submission that the Court of Appeal failed to distinguish between the fact of de facto statelessness and the significance of that fact (the latter, rather than the former, being argued to be the mandatory relevant consideration) does not appear to the panel to raise an arguable point of law.

“The panel notes that the Appellant does not challenge the existing law that the prohibition, under section 40(4) of the British Nationality Act 1981, on making a deprivation decision which would render a person stateless, refers to de jure rather than de facto statelessness. Nor is it argued that the Secretary of State’s decision to make the deprivation decision, notwithstanding that its effect would be to render the Appellant de facto stateless, was unlawful because it was perverse.”

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Begum may apply now to the European Court of Human Rights – a possibility which the Supreme Court alludes to elsewhere in its decision: “Whether the Convention law should be developed as the Appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the ECHR. It is not the role of this court to develop the law under the Convention well beyond the principles established by the European court.”

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But overall, this does not seem a satisfactory position.

There are many people in the United Kingdom who either through their parents or otherwise could, in theory, become a citizen of another country – even though they have no real connection with such a country.

The power used in the Begum case cried out for judicial consideration at the very highest level in our judicial system, but the Supreme Court appears to have shrugged – and, at best, passed the matter to Strasbourg.

Of course, we do not have all the facts about Begum – there may be evidence not in the public domain which justifies her exclusion; we do not know.

But the general principle about removing British citizenship requires anxious scrutiny by our highest court.

In 2020-21 the Supreme Court decided various technical points about Begum’s case.

It is a shame that the Supreme Court has now decided not to hear the substantive issue in her case.

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Lucy Letby and miscarriages of justice: some words of caution on why we should always be alert to the possibilities of miscarriages of justice

19th August 2024

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What Elon Musk perhaps gets wrong about civil wars being ‘inevitable’ – It is in the nature of civil wars that they are not often predictable

7th August 2024

On the site that is still known as Twitter, Elon Musk has again tweeted that ‘civil war is inevitable’.

The thing is that civil wars are rarely inevitable – at least not in the short- to medium-term.

This is because civil wars occur, almost by definition, where there is some kind of pre-existing polity which has broken down.

This is what makes them ‘civil wars’ as opposed to any other form of human conflict.

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A polity often has two key features.

The first feature is a means of regulating disputes – political, legal, social, religious disputes, and so on.

The second feature is a means of enforcing order – usually a form of legitimised coercive power.

It is only when a polity fails to resolve a dispute and then does not enforce order that there risks being a civil war.

The presence of perceived contradictions within a given society is not sufficient: a ruler or ruling class can be quite adept at keeping power despite significant domestic discontent.

Some polities – from tyrannies to loose confederations – can exist when with stark differences between those who are governed.

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In the longer term, there may be a case for a ‘civil war’ being inevitable.

Most political systems will break down eventually, after a century or two.

In what is now Great Britain and Ireland there have been various civil conflicts on and off for hundreds of years.

If Musk waits long enough then there may again be a civil war one day.

But one suspects that is not what he means.

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What is often meant by those who say civil conflict is inevitable is that they normatively think that civil conflict should be inevitable.

That they believe there should be a civil conflict on socio-economic or ethnic or religious or some other lines within a given polity.

But, to adapt Karl Marx, ‘the history of all hitherto existing society is the history of those in power often staying in power to the frustration of those who want to have a revolution’.

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Civil wars are rarely inevitable.

And civil wars deliberately brought about and signalled in advance are rarer still.

If the polity fails to resolve the underlying disputes in a given society – including by the means of effecting fundamental constitutional or socio-economic changes or by granting autonomy or independence to a certain part of the polity – then there is the additional hurdle of the state being normally in a strong starting position to enforce and maintain order.

To say that one thinks normatively there should be a civil war is not the same as saying positively that there will be one.

Yes, every polity is capable of collapsing, and a civil war is thereby always a possibility.

But they are often not predictable when they do happen.

And they then only seem inevitable in hindsight.

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How the criminal justice system deals with a riot

5th August 2024

Thirteen years ago, I went along to the south London shopping centre expecting to report on a riot. But there was not a riot.

The Lucy Letby case: some thoughts and observations: what should happen when a defence does not put in their own expert evidence (for good reason or bad)?

26th July 2024

Often the criminal cases that feature prominently in the news are really not interesting from a legal(istic) perspective.

One could quite happily commentate on interesting legal issues and never engage with a case which has been on the front pages.

And one could follow ‘true crime’ stories and never come across an interesting legal issue.

There is usually not much of an overlap: ‘true crime’ and earnest, plodding legal commentary normally do not have that much in common.

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The Lucy Letby case has been prominent in the news now for some time.

She has been convicted of multiple murders and attempted murders.

But is there anything in her case which is of wider interest – or of concern – in respect of the legal system?

Is there an issue here about the process of criminal justice?

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Some people maintain she must be innocent; and some people insist she must be guilty; and there are many websites and social media posts setting out both of these positions.

This blogpost is not one of them.

I do not know if she is guilty or innocent. That is a matter for a jury – or an appeal court.

She may be a serial killer, or she may be a victim of a miscarriage of justice; that is for others to decide.

But there is, I think, an issue here of potential wider concern.

This may be a rare example of a front page ‘true crime’ story which also raises an important issue about the legal system.

And that issue is about the role of prosecution expert evidence in an adversarial criminal trial when the defence elects not to put in their own expert evidence (for good reason or bad).

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Lucy Letby was convicted, in part, on the basis of expert evidence.

The case against her was not entirely based on expert evidence; there was other evidence put before the jury.

But, on any view, it was an expert evidence heavy prosecution.

And that is not unusual – or wrong: there are many criminal prosecutions which depend on expert evidence.

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In our adversarial system, what often happens in a jury trial when there is reliance by the prosecution on expert evidence is that there is also expert evidence put forward by the defence.

In principle, the expert owes their duty to the court – and not to the party who has instructed him or her.

In practice, of course, the prosecution will put forward expert evidence that supports their case, and the defence puts forward expert evidence which supports their case; the experts are then examined and cross-examined by lawyers; the judge sums up; and the jury then weighs the evidence of the experts in its deliberations.

This system is not perfect, and indeed no litigation process is perfect; but it generally works.

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But what happens when the defence, for some reason, does not put in their own expert evidence?

The prosecution expert evidence will still be examined and cross-examined by lawyers – and the judge will still sum up, and the jury will still deliberate.

But the questions of the lawyers – especially the cross-examination – are not themselves evidence.

The only expert evidence is that put in by the prosecution.

The jury do not get to compare and contrast the expert evidence of the prosecution and the defence; the judge gets only to sum up the expert evidence of the prosecution.

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In the first Lucy Letby trial, for some reason, there was no expert evidence put in by the defence.

We do not know that reason.

What we do know is that the defence team continued to act for her on appeal and so it would seem that their client is not dissatisfied with the conduct of the defence. This would indicate that there was, at least for their client, a good reason for not putting in expert evidence, else – presumably – she would have instructed new counsel for the appeal.

If so, could there be a good reason?

Yes, indeed there could be more than one good reason – though this is supposition, for we do not know the reason.

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One possible good reason for there not being expert evidence put in by the defence has been identified by the experienced criminal barrister Adam King in a strong piece setting out why there may be a miscarriage of justice in this case:

“One reason the defence might have chosen not to call Dr Hall (and I am speculating here) is if they felt they had so thoroughly undermined Dr Evans that they were better off leaving it at that. That would be a big tactical call, but covering your own back is not always consistent with protecting your client’s interests.

“So, for example: if your own expert would contradict much, but not all, of the Crown’s expert’s conclusions, and you believe the credibility of the Crown’s expert has been totally destroyed, you might judge it prudent not to put your own expert in the witness box. Avoiding the potential for future criticism and hindsight regret by putting your client in what you believe will be a worse position — by calling your own expert — is not a boss move. This is all speculation, but I guarantee that careful thought went into the decision not to call Dr Hall. None of this, though, would mean the conviction is safe.”

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Another possible reason not to call expert evidence is that your client’s case is that the relevant area of knowledge is such that no actual expertise is possible. This may be because of the lack of reliable data, or because it is a novel or developing area.

If so, calling an expert on that point would contradict that position.

We do know that Letby’s defence lawyers put in a detailed submission at the end of the prosecution case in the first trial that the prosecution had shown no case to answer and that prosecution expert evidence should be ruled inadmissible. It may have been that calling expert evidence would have undermined the prospects of what may have been a successful application.

We don’t know.

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In essence, the decision not to call expert evidence may have been a perfectly legitimate one for Letby and her lawyers to make in the circumstances of her case.

And one should remember – and this is a crucial point – it is for the prosecution to make out their case.

It is for the Crown to prove their case to the criminal standard of proof, and not for the defence to disprove it.

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But.

While it may have been in the interests of Letby and her lawyers not to put in expert evidence, this has the knock-on effect of there being no expert evidence from the defence for the jury to consider.

That prosecution expert evidence may be subject to robust cross-examination – but the questions of the barrister are not evidence, and the jury have to decide the case on the basis of the evidence.

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At this point, many legal folk and others would say that the fault here is with Letby and her lawyers. The defence had the opportunity to put in their own expert evidence, and they did not do so. And that the convictions were the consequence.

But it may be that response avoids a key issue.

It is for the prosecution to prove their case, and not for the defence to disprove it.

It is thereby for the prosecution to ensure that the expert evidence on which it seeks to rely is as sound as possible.

The prosecution cannot shrug off this responsibility and say that it can be cured by the defence expert witnesses.

And there is concern that the prosecution expert evidence in the Letby case was not sound to begin with.

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If that concern about the prosecution expert evidence is well-based – and this is a legal blog and not a medical or science blog, and so like many of you I have no idea – then the question is what, if anything, can and should the legal system do about it – especially when the defence (for good reason or bad) do not put their own expert evidence in.

Here there are rules on what experts can and cannot do and say, and on what their duties are to the court; here there are also rules on the admissibility of expert evidence; and there will also be cross-examination of the expert by defence lawyers.

There are safeguards.

But.

The key safeguard against poor prosecution expert evidence in our adversarial system is that the defence can put in their own expert evidence for the jury to weigh against it.

But when the defence do not do that (for good reason or bad) then there is perhaps a system failure of the adversarial system.

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Here one can (again) say that is the fault of Letby and her lawyers.

But even taking that (fair) point at its highest, there is a potential wider problem.

A lot depends on the soundness of the Letby conviction.

Indeed there is an important public inquiry which is predicated on the basis of the convictions being sound:

If, as some insist, the prosecution expert evidence in the Letby case was unsound, then any inquiry based on that expert evidence being sound will have challenges.

“MD” in the current edition of Private Eye sets out the implications:

“…[the] Thirwall public inquiry may inadvertently be derailed by experts who say under oath that Letby wasn’t stopped sooner because there were far more plausible reasons for the deaths than murder.”

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The cases involving Roy Meadow show that we should always be alert to the problems of expert evidence.

If – and it is an if – the prosecution expert evidence in the Letby case was unsound, then there is a hard question of what else the criminal justice system could/should have done when a defence does not put their own expert evidence.

Given her decision not to put in expert evidence, is it the case that she had the fairest trial possible in the circumstances?

Or is there something else the criminal justice system could/should have done in this case – and similar cases?

It may be that there is a lacuna here – and not one which is easy, or even possible, to address in our adversarial system.

In essence: what can a criminal court do in respect of unsound expert evidence when the defence elects (for good reason or bad) not to put in their own expert evidence?

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Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy

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Trump’s case – a view from an English legal perspective

24th April 2024

I am not an American lawyer, but here are some thoughts from an English litigation perspective.

Trump is adept at what he calls (or his ghost writer called) ‘the art of the deal’ – that is a transactional approach based on exploiting leverage.

Such an approach is not unhelpful in pre-trial shenanigans, where it is one party dealing with another party.  Pre-trial litigation is often deal-making by another name.  But when a dispute gets to court (and most Trump-related litigation does not get to a courtroom) then such bilateral game-playing becomes far less important.  A third party – the judge (and sometimes jury) takes power.  Trump’s blustering and bargaining is not well suited for this.  Bullying will now not be enough.

And there will also be another thing he now cannot control: evidence. And this evidence will feed into the media mainstream, with the added credibility of being on oath.  For somebody who is a deft manipulator of the media and his public image this los of information control will also be painful for him.

I have no idea if Trump will be convicted.  I suspect it will be hard to get a conviction.

But he is now a fish out of water, at least for a while.

 

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Law and lore, and state failure – the quiet collapse of the county court system in England and Wales

22nd April 2024
One theme of my blogging is the relationship between law and lore. By ‘law and lore’ I mean what people believe to be the law to be, as opposed to what the ‘black letter’ law actually is.
Few people, if any, regulate their lives by what the law actually is – for no (normal) human being can know the detail of all the laws that apply at every moment of their lives, from statutes and by-laws to contractual terms and conditions. The best that one can do is know as much actual law as you can and hope that what you believe about law corresponds with what the law actually is.

(And, of course, it may not always be plain what the law actually is, in any case.)

Another theme of my blogging is state failure. By ‘state failure’ I mean the acts and omissions by and on behalf of public officials and public bodies that indicate fundamental and/or systemic failings.

Sometimes these state failings can be hidden deliberately from the public and indeed politicians and the media, and sometimes there is perhaps no need to deliberately hide them as too few people care. In either case the ultimate problem is either lack of resources or lack of accountability, or both.

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Over at Prospect I have done a piece that illustrates these two themes: the unsexy and perhaps uninteresting topic of local civil justice – and in particular, the county court system.

Please click and read here.

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I fell onto this topic by chance. I was looking at the transcript of the recent ‘liaison committee’ of the House of Commons for something I am writing about parliamentary accountability. This committee, comprised of select committee chairs, is one of the few recent improvements in holding the executive account, with its periodic examinations of the Prime Minister.

At the most recent session, I saw that the Justice committee chair devoted about half his allotted questions to the county court system. He could have chosen many other topics – from international law to prisons – but this was the subject he selected. That in turn led me to seeing that the justice committee has started an investigation into the county court system. Such an inquiry is welcome.

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The reason the county court system combines state failure (of which it is an example) with law and lore is that, for most people the county court system would be where they would enforce their everyday legal rights and obligations in respect of civil law – contract, torts, family law, property law, and so on.

Few people would be able to commence such litigation in the more expensive and exclusive High Court – just as few people would be able to lunch at the Ritz.

Of course, most people will not ever litigate. Indeed most people will happily go through their lives without attending a county court – or even knowing where their nearest one is situated.

But they will conduct themselves often on the assumption that certain rights and obligations can be enforced ultimately.

However, if the county court system continues to collapse, then that assumption will become increasingly academic. In essence, what people believe they can enforce at court will become more lore than law.

This is not to say that there will suddenly be anarchy and lawlessness: systems of customary oral law can be very enduring, and some systems of non-enforceable law can be rather resilient.

But eventually the mismatch between what is understood to be the law and what can actually be enforced will have some effect, and that effect will, in turn, modify behaviours – and in an adverse way.

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We are getting close to local civil justice not being meaningful to many in the community.

Let us hope that, unless local civil justice is somehow revitalised, that the lag between law and lore is a long one.

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Could the Post Office sue its own former directors and advisers regarding the Horizon scandal?

16th January 2023

Time is a problem for the Post Office, and its government owners, in making any legal claim against Fujitsu.

This is because any claim would probably be for breach of contract, and the limitation period for suing for breach of contract is normally six years from the breach.

Unless there was concealment – and here it is plain that the Post Office knew there were serious problems by 2013 (and no doubt for a long time before) – it is rare for a court to extend the limitation period.

At the House of Commons business select committee hearing today Fujitsu accepted a “moral obligation” to provide compensation. This indicates that Fujitsu’s response is PR-driven rather than strictly legalistic, as there is probably no legal obligation to compensate for any breaches obvious before six years ago.

(There may be a possible indemnity that may still be legally live in the Post Office Horizon contract, outside the limitation period, but that is unlikely.)

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But.

The Post Office, and its government owners, may have claims against its own former directors and advisers for any wrongs in respect of how the scandal has been dealt with in the last six years.

In essence: could Paula Vennells and others be sued?

It would be interesting if any such recovery is sought.

 

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