Category: Courts and the administration of justice

A look at why Fox and Dominion settled

19th April 2023

Almost all civil litigation ends before a trial takes place.

Civil litigation – where one party sues another person in respect of a legal wrong – is distinct from criminal litigation and much public law litigation where it is expected that some court hearing takes place.

In civil litigation, weak cases tend to be withdrawn at an early stage, while stronger cases tend to get settled.

Indeed, civil litigation is often a structured form of deal-making, providing a hard procedural framework for negotiations and compromise.

This is because of two things.

First, it is usually plain at an early stage if the claimant actually has any sound claim at law, or a defendant a sound defence.

Second, before any trial, it is also then usually plain how strong the evidence is – witness evidence, expert evidence, documentary evidence, exhibits – for both parties.

Of course, dramatic things can happen at a trial – some stunning exercise in cross-examination, or some unfortunate admission – that can make a difference to a case.

But usually, any competent litigator (or, in the United States, trial lawyer) will be able to advise weeks before any trial on the likelihood of success or failure.

Pre-trial stage is where the most significant litigation work takes place – not in the theatrical, rhetorical flourishes of counsel in the courtroom.

But in the methodical grunt-work of getting a case prepared for trial.

For the litigation paradox is this: you are more likely to get a satisfactory result before trial by preparing to go for trial.

And you are less likely to get a satisfactory result before trial if it is obvious you are not willing or able to go for trial.

*

There are exceptions to the general rule that almost all civil litigation ends before a trial takes place.

Sometimes there is an area of law that is genuinely unclear, and so neither party can be sure which way a court will go, and so a judgment is needed.

Sometimes there is a need for a property or other legal right to be judicially and publicly determined.

Sometimes you have a party who simply wants their day in court, regardless of legal advice to settle.

And sometimes, a party may have got itself into such an awful legal costs tangle that it has to, in effect, bet on the outcome of a trial as the least bad outcome.

But these (and some other) exceptions aside: almost all civil litigation ends before a trial takes place.

The only questions are when and how the litigation ends.

And this may surprise some outsiders, for whom litigation is about what happens in a courtroom.

But like battles and wars which are won and lost before any confrontation takes place, so is most civil litigation.

This is, in a way, the art of law.

*

None of the above will be news to long-term readers of this blog.

But the latest application of the truth that almost all civil litigation ends before a trial takes place is the settlement in the United States of the Dominion lawsuit against Fox.

The settlement was in the days before a trial was scheduled to take place.

On the face of it, this is not a case that should have got as far as it did.

In particular, it would appear that the evidence was strongly on the side of Dominion – especially the disclosures about those at Fox knowingly broadcasting untruths.

But.

The lateness of the settlement indicates two things.

First, either party – or both parties – were playing hard.

And this would not be a surprise given the amounts – and reputations – at stake.

Dominion, in particular, conveyed an impression that it wanted public vindication – and so would be committed to go to court if there was not a public apology.

As it happens, there seems not to have been a public apology – but Dominion’s demand for one no doubt led to Fox having to settle for a higher amount than it would have done otherwise.

Both sides knew that a public admission of wrongdoing was Fox’s weak point – in a way that, in the United Kingdom, News International has been careful not to admit whether certain newspapers were involved in phone hacking.

On the other hand, Dominion had its own weak point.

And this was possibly the second reason for the lateness of the settlement.

To win at court, Dominion had to go beyond showing that Fox were aware that it was broadcasting untruths.

Dominion had to show “malice” – which in the United States, as in England, is a high and difficult threshold to meet.

Malice is a state of mind, like dishonesty in a fraud case.

And short of an admission, malice has to be somehow shown by inference from the available evidence.

That is often not easy regardless of an abundance of evidence of wrongdoing – and thereby there is an element of uncertainty for both sides: will they, won’t they, etc.

And both sides knew about this uncertainty too.

*

Fox and Dominion were in a litigation struggle.

Fox wanted to avoid any public acknowledgment of wrongdoing, but the courtroom clock was ticking louder and louder, and in turn Dominion realised their case was not an easy win because of the requirement to show malice.

But Dominion seemed to have convinced Fox that it was committed to getting public vindication.

And so Fox settled, for an extraordinarily high amount.

As such it has deprived some from the spectacle of a courtroom drama and possible public humiliation for individuals connected with Fox.

But for connoisseurs of civil litigation – who know trials are unlikely – the pre-trial litigation struggle was spectacle enough.

And it was well-played by Dominion.

***

Comments Policy

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 and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Easter

Maundy Thursday 2023

The story of the trial of Jesus of Nazareth has always fascinated me.

I happen to be a non-militant atheist but that hardly matters, for the gospels’ narrative(s) of the arrest, trial and punishment of Jesus of Nazareth is(/are) set out in largely secular terms.

Nothing – or almost nothing – depends on any miracle or divine intervention.

(This contrasts with the narrative(s) before Palm Sunday and after the crucifixion.)

It is essentially a human story – about what humans did to to someone who they saw as human.

Of course, it is difficult to make sense of some of the narrative(s) – not least about how someone accused of those crimes ended up being executed by the imperial power by means of crucifixion.

One day, perhaps, I will set out more thoughts about this trial process – and in a way which is satisfactory (I hope) to those (of you) who have faith as well as to those (of us) who do not.

But in the meantime, I mention this to show that even where there are fundamental differences there can be common ground.

And it is always good to find it if you can.

Happy Easter, or Passover, or holidays, to all my followers – and I will return to the blog on Tuesday.

***

Comments Policy

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 and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The problem of PDD – the Public Display of Defendants

5th April 2023

Let us start with the old adage: justice not only has to be done, justice must also be seen to be done.

The phrase is sometimes attributed to this very short judgment from 1923, which contained:

“…justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

The saying reminds us that justice is not only about process – it is also about performance.

An adjudication by a court not only resolves a dispute between parties (even if one of the parties is a prosecuting authority) but is also a social fact that, in turn, goes to whether there is justice in a community as a whole.

*

In the last week there has been two striking examples of the performative element of justice.

One was in a Manhattan courtroom, where one defendant was photographed with his attorneys in a courtroom, but he was spared the “perp walk” and other humiliations.

Another was in an English courtroom, where the convicted murderer refused to come up from the cells to attend sentencing.

The Secret Barrister has written well and convincingly about the latter incident.

As the Secret Barrister indicates, this may be a problem which does not have an easy solution, despite the political and media clamour that something must be done.

There is no obvious way that a defendant can be coerced into respectfully attending their sentencing hearing.

Convicts facing life sentences have no real concerns about additional years.

And there is nothing straightforward that will prevent a prisoner gurning and grinning throughout a sentencing, so as to make the victims and their families yet more uncomfortable.

A judge ordering such a distracting and disruptive defendant to be taken back down to the cells defeats the purpose of forcing them to attend the sentencing, if you think about it.

*

There is perhaps a deeper and more difficult question here.

At what point does the performative element of sentencing become a thing in itself, rather than the means be which we can see that justice is being carried out?

The history of punishment is full of examples where the PDD was geared to humiliate the convict as an objective by itself.

But.

This sometimes backfired.

For example, those being taken by cart to Tyburn to be hanged often became part of a carnivalesque spectacle.

There are even tales of prisoners playing up to the cheering crowds.

(Image credit)

And this is the problem about justice as theatre: not everyone solemnly plays the solemn parts to which they have been solemnly allotted.

*

There has to be a balance between justice as a process and justice as a performance.

Surviving victims and their families should be heard, and they should have a say.

They should see justice being done, as it is done.

This is fundamental.

But those who promise surviving victims and their families that defendants and convicts can be coerced into some performance of contrition or seriousness may be falsely raising the hopes of those surviving victims and their families.

And it may be better not to make such irresponsible promises.

*

It should always be remembered that the sentence is the punishment.

By seeking to add performative elements to the process of justice, in addition to any sentence, there is a risk that the performance – the PDD – becomes an end in and of itself.

And if so, then the actual punishment – the sentence – becomes secondary, an afterthought.

The PDD becomes the thing.

And this would be a mistake.

For justice should not only has to be seen to be done, justice has to be done.

The old adage works the other way round too.

***

Comments Policy

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 and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The indictment of a former president

4th April 2023

It would not matter if it were Jimmy Carter or George Bush, Barack Obama or Bill Clinton, Joe Biden or Donald Trump: the fact that a former or sitting president can be indicted, and so thereby is not above or outside the law, is significant.

This is not a partisan point, but a constitutionalist point.

It could be (say) Clinton, but it is Trump.

From a constitutionalist perspective, it does not matter who it is.

But it shows that no president – former or serving – is above the law.

This is a huge moment.

It may well be that Trump is not convicted of the charges against him.

To the extent the charges require proof of dishonesty, that may be difficult to show.

And Trump has spent his business and political careers gaming and manipulating process and leverages.

It is thereby more likely than not that Trump will not get convicted – especially as he now has, as a defendant, due process and constitutional protections on his side.

But.

The fact that it can be shown that he – or any other former president – can be nonetheless subjected to the normal process of law (whatever the outcome) is momentous.

Today is a big day.

It is huge – even if he is acquitted.

Huge.

***

Comments Policy

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 and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

“Happily Ever After” – Disney and the Rule Against Perpetuities

30th March 2023

Sometimes there are odd things trending on social media.

A few days ago it was “Catford and Catford Bridge” – and this morning it was “the rule against perpetuities”.

This rule is the law student’s equivalent to the history student’s Schleswig-Holstein question, in that few feel certain they really understand it.

But in essence, it is the means by which the courts can prevent certain property arrangements from having effect too far into the future.

The main encyclopedia of English law describes the rule as follows:

“the rule against perpetuities […] which prevents the creation of interests in property which are to vest at too remote a time”.

And, looking it for the purpose of this post, I learn perpetuity in England is now set at 125 years.

In Florida, however, there seems to have been no such legislative intervention – and this brings us to today’s trending news.

In essence, the lawyers here have adopted an eye-catching variation of the living-person-plus-21-years formulation which some lawyers have used as a way around the rule against perpetuities.

The formulation provides the means of reckoning an end-date by reference to someone now alive.

Given the most recently born of King Charles’s descendants is Princess Lilibet, who was born in 2021, then if she lives to seventy-five the term of the declaration would be at least a hundred years.

I am not a Florida lawyer, but looking at the thread as a whole it would appear that the Reedy Creek Improvement District Board’s lawyers realised there was the possibility of any “in perpetuity” provision being challenged and so they prudently provided the reference to King Charles’s descendants as the fallback position if that challenge is successful.

And presumably those lawyers selected the descendants of King Charles now living because (a) their birthdates are matters of public knowledge and (b) the most recent birth of a descendant now living was 2021.

It would have made less sense if a similar provision had been adopted in say 2012, before the birth of Prince George, as the most recent descendant would then have been Prince Harry in 1984.

I have no idea if such a specific fallback provision is common in legal instruments in America or elsewhere, but contracts providing for what happens if a particular provision is unenforceable is a commonplace in many contracts.

And any sensible lawyer knowing that the rule against perpetuities would be invoked would insert a fallback position.

It is only the eye-catching example which makes this one seem that different.

*

The irony here is that this is not the first time Disney have been playful with terms of years for property rights.

Disney has form.

You may recall the Mickey Mouse Protection Act.

One promoter of the legislation, Mary Bono said:

“Actually, Sonny [Bono] wanted the term of copyright protection to last forever.

“I am informed by staff that such a change would violate the Constitution. […]

“As you know, there is also Jack Valenti’s proposal for term to last forever less one day.”

Alas, Disney did not get their way that time.

*

Perhaps no lawyer has ever legally defined “happily ever after”.

But from Disney’s perspective, “happily ever after” can be now be defined as twenty-one years after the death of the last survivor of the currently living descendants of the King of England, or even “forever less one day”.

And that is the magic of the law of property.

***

Comments Policy

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 and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The tragedy of the Human Rights Act

27th March 2023

Here is a playfully mischievous tweet from the Guardian:

And how we can – and perhaps should – laugh at the irony of a newspaper that has attacked the Human Rights Act relying on that same Act when it is in its interests.

It is not even the first time – here is Associated Newspapers seeking to rely on the ECHR in respect of the Leveson Inquiry  and here is Associated Newspapers seeking to rely on the Human Rights Act in 2006.

And there is nothing – absolutely nothing – wrong with Associated Newspapers seeking to do this.

For that is what the law of fundamental rights is for: they can be relied by (or sought to be relied on) by anybody.

There are useful rights for the media generally and journalists in particular under the Act.

And in other jurisdiction – notably the United States – the media and journalists are conscious of the fundamental rights they can rely on and can point to provisions that protect those rights.

The tragedy of the Human Rights Act is that despite it providing rights on which the media and journalists can rely, it is also despised in many in the media and journalism.

There is a mismatch between the reputation of the Act and the substance of the Act.

In the United States it would be unthinkable – even now – for any media organisation to call for the repeal of the First Amendment.

If only media organisations in the United Kingdom were as protective of Article 10 of the ECHR.

But there is a disconnect.

The newspaper in-house lawyers know about these provisions, and they will not hesitate to rely on the ECHR and the Human Rights Act when they can.

But across the office floor, there is not attachment to Article 10.

And that is part of the tragedy of the Human Rights Act.

Over twenty years since it took effect, it is still seen by so many in politics and the media as a partisan ornament rather than a practical instrument.

So entrenched is the dislike for the legislation it is tempting to support repealing the Act and replacing it with a new statute with exactly the same provisions but with a far less contentious name.

***

Comments Policy

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 and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

This week’s Substack essay: how the courts improvised legal solutions in the hard case of George Blake

 

This week’s Substack essay is on George Blake – and how the English court system and the government struggled to come up with a legal basis for depriving him of monies from his memoirs – and how the solution finally adopted then caused its own legal problems for the law of contract.

*

Blake was rightly sentenced to 42 years’ imprisonment in 1961, and he was perhaps lucky not to be executed, and the only real fault with his sentence is that the prison authorities allowed his easy escape in 1966. Blake ended up in Russia, lauded first by the Soviet government and then by Putin. He died in 2020.

Given this background, it is not hard to sympathise with those who wanted somehow to deny him the proceeds of a 1989 book deal for his memoirs.

The general sense from reading about what then happened is that both the government (under Conservative and then Labour ministers) and the judges thought something should be done to prevent Blake getting the monies from the publisher of his memoirs.

The problem was that there was little-to-nothing that could be done on the basis of the then existing law. And so the government and the courts sought to improvise (or ‘develop the law’ to use the polite legal fiction) a legal basis for denying him the publisher’s payments, with the House of Lords in 2000 coming up with something that had eluded the High Court and the Court of Appeal.

But the way the House of Lords ensured something was done to deal with Blake’s case meant, in turn, that an element of uncertainty was introduced into English contract law which, again in turn, lasted until the Supreme Court effectively limited the case of Blake to its own exceptional facts in 2018.

Blake is perhaps a good example of how hard cases make bad law – or at least uncertain law.

My Substack post tells the story of this fascinating hard case.

*

Those of you kind enough to be paying Substack subscribers can read it here – and if you are not yet a paying Substack subscriber, please consider becoming one.  The subscriptions help support my daily law and policy commentary on this blog.

Those of you who are Patreon supporters can read the essay here.

Anyone who donated money to this blog in 2022 can have a free one year complimentary Substack subscription – just leave a comment marked “Private” below with your email.  (It is important that nobody pays twice for my drivel.)

*

Last week’s essay was on the lore of Lady Justice, and you can read it here.

The week before it was on the case of Jane Wenham and the last of the English witch trials.

Other essays include (in chronological order of the subject):

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign

Taff Vale (1901) – perhaps the most important case in trade union history

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness

Malone (1979) – perhaps the most significant constitutional case of the last 50 years

These essays are on topics to do with legal history and legal lore – and they are in addition to my topical law and policy commentary here every weekday.

***

Comments Policy

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 and comments will not be published if irksome, or if they risk derailing the discussion.

What the judge said and did not say at the Just Stop Oil hearing, and what the judge should and should not have said

22nd February 2023

The from-court sensation last week was not about something in the High Court, the Old Bailey or any of the other august courts of the English capital, but about what happened at a hearing at Wolverhampton Magistrates’ Court.

It was a legal case that involved no great issue of law, and indeed there seems no dispute about the applicable law or even its application.

The sensation was not the result of sensational news reporting from an intrepid news reporter, for there seems to have been no media present at the hearing.

And there does not seem to have been any miscarriage of justice, and the findings of guilt and acquittals seem not to have been wrong on the available facts.

But there was a sensation, all the same.

Tweets went viral, with one tweet on the hearing recording 1.4 million views.

The case was taken up by the national press, and pundits were emphatic in their support or opposition to what happened.

A former home secretary said this:

And, from the opposing perspective, a well-known Canadian campaigner said this:

And all this for case in a local magistrates’ court, with no great issue of law, no obvious miscarriages of justice, and it seems no news reporters present to record what happened.

Regardless of the substance of what happened, it is an example of what happens when the legal system and modern social media (and after a lag, mainstream media) meet.

So what did happen at that hearing at Wolverhampton Magistrates’ Court?

*

The straight answer is that we perhaps cannot be certain absolutely what happened, as accounts differ, and there seems to have been no recording of the hearing.

But what we can work out is as follows.

We are told there were nine defendants.

(There is a reason for the “We are told” choice-of-words, as will become apparent.)

We are also told the offence was aggravated trespass, which is an offence under section 68 of the Criminal Justice and Public Order Act 1994:

The Crown Prosecution Service guidance on the offence is as follows:

The prosecutions were in respect of this incident from April 2022, as reported by the local news Express & Star:

According to that news report:

“Around 30 protesters from the Just Stop Oil coalition, including two on the roof of a petrol tanker, blocked the exit and entrance to the Esso fuel terminal in Wood Lane, Tyburn, Birmingham.

“Members of the group called Just Stop Oil said it had blocked a number of “key oil” terminals, including the site in Tyburn, Birmingham.

“Police warned of delays as ExxonMobil UK, one of the country’s largest privately-owned underground oil pipeline distribution networks, confirmed demonstrations were under way at some of its sites. It said it had shut down three of its sites.”

The Birmingham Evening Mail reported:

“A protester was carried away by five police officers during a new blockade at a Birmingham fuel terminal.

“Activists from Just Stop Oil again blocked access to the Esso site in Tyburn today, Sunday, April 3, despite more than 100 arrests across the country this week. A police cordon was in place in Wood Lane, where officers had been stationed since 7.30am. West Midlands Fire Service was also in attendance.”

Two days before, the Birmingham Evening Mail reported:

“A Just Stop Oil protester glued his hands and bare feet to the road during a nine-hour protest in Birmingham. Others have glued themselves to each other.

“Up to 45 protesters have been disrupting oil tankers heading in and out of the Esso Fuel Terminal on Wood Lane, Tyburn, near Erdington, since 4am today, Friday, April 1.”

The “Just Stop Oil” group behind the protests published this release at the time:

“For the third day in a row, supporters of Just Stop Oil have disrupted oil supplies from 7 critical oil facilities near London and Birmingham in support of their demand to the UK government to end new oil and gas projects in the UK.

“Early this morning people climbed on and blocked oil tankers at 5 critical oil terminals. A few have entered the loading bay at Buncefield oil terminal in Hertfordshire and are standing on oil tankers holding banners.

“At Kingsbury, Midlands and Esso terminals in Birmingham oil tankers have been prevented from leaving by people sitting in the road.”

*

From the contemporaneous news reports and the contemporaneous Just Stop Oil press release there can be no doubt that (a) disruption was caused and (b) disruption was intended to be caused.

As such, anyone who caused the disruption and intended to cause the disruption could have no serious defence to a charge of causing and intending to cause the disruption.

*

And so from the protest last April, a prosecution was brought this month at Wolverhampton Magistrates’ Court.

We are told that that the hearing involved cross-examination, and that evidence was put in by the defendants.

This would mean that notwithstanding the openly expressed intention by Just Stop Oil to cause disruption, and the evidence of the disruption caused, the defendants pleaded not guilty.  This would also accord with two of the defendants being acquitted.

Seven of the defendants were however found guilty.

The judge – District Judge Wilkinson – said some things.

And this is when things become less certain.

*

A judge can say various things during a hearing – indeed, no one is usually in a position to tell them to shut up.

A judge making any significant decision will usually give reasons.

A judge imposing a sentence will give what are called “sentencing remarks” – which, in some national-profile cases are collected and published by the Judicial Office (previous examples are here).

But when a judge acquits they may also give reasons.

And sometimes what a judge says is set out in a prepared script, sometimes it is based on notes, and sometimes a judge may speak without notes.

*

After the hearing, the Just Stop Oil published a press release:

This was quite the headline, given that there were seven defendants found guilty.

The press release also contained what it called a “summation” – which is not a legal term for anything a judge says – and this “summation” is quoted as if it was verbatim:

“It’s abundantly clear that you are all good people. You are intelligent, articulate and a pleasure to deal with. It’s unarguable that man-made global warming is real and we are facing a climate emergency. Your aims are admirable and it is accepted by me and the Crown Prosecution Service that your views are reasonable and genuinely held. Your fears are ably and genuinely articulated and are supported by the science.

“When the United Nations Secretary General gives a speech saying that the activity of fossil fuel companies is incompatible with human survival, we should all be very aware of the need for change. Millions of people, and I do not dispute that it may be as many as 1 billion people, will be displaced as a result of climate change.

“No-one can criticise your motivations. You all gave evidence that was deeply moving. I certainly was moved. The tragedy is that good people have felt so much, without hope, that you feel you have to come into conflict with the criminal justice system.

“Thank you for opening my eyes to certain things. Most, I was acutely and depressingly aware of, but there were certain things.

“I say this and I mean this sadly, I have to convict you. You are good people and I will not issue a punitive sentence. Your arrests and loss of good character are sufficient. Good people doing the wrong thing cannot make the wrong thing right. I don’t say this, ever, but it has been a pleasure dealing with you.

“You should feel guilty for nothing. You should feel proud that you care, have concern for the future. I urge you not to break the law again. Good luck to all of you.”

*

It was the screenshot of this “summation” that went viral.

And, as you can see, it is the last of the paragraphs quoted which provided the headline to the press release.

The impression of that last paragraph (given the “you” in the prior “… I have to convict you…”) is that the judge’s remark that “You should feel guilty for nothing” is addressed to all the defendants.

But that final remark is no more striking than the rest of the quoted text.

Did a judge really say all these things to defendants in a criminal case?

*

When I saw the viral tweets I did nothing to promote or amplify them.

In fifteen years of legal commentary I have learned that when a judge is reported to have said something sensational – especially if it accords with your world-view – it is better to wait for it to be verified before congratulating or castigating the legal system.

But pretty soon these viral judicial remarks prompted an equal and opposite reaction.  The Daily Telegraph reported:

The news report continued:

“But on Friday afternoon, the Judicial Office, which represents judges, admonished the group for “misquoting” the judge. […]

“In a rare intervention, the body accused them of taking a phrase “out of context” and issued an almost entirely different account, saying it was “what the judge actually said”

“[…] the Judicial Office said: “It was said to one of the defendants who in his evidence had said (through tears) that he felt guilty for not doing enough to save the planet for his daughter.”

(The judge’s statement was also posted on the Crimeline site, though inadvertently incorrectly titled as “full” sentencing remarks.)

*

An “almost entirely different account”?

This was becoming fascinating.

So far in this post I have relied on the Just Stop Oil press release for the from-court facts – hence the “We are told” formulation above – but the facts stated above – charges, number of defendants, disposals – do not seem to be controversial, or indeed controverted.

But now we have an alternative version of what happened.

The Judicial Office had contacted the judge, who provided his own note of what was said.

The judge’s note was:

“As a judge my overriding duty is always to uphold the law without fear or favour.

“This is not a court of morals it is a court of law, if I allow my own moral compass or political beliefs to influence my decisions and ignore the law where it is convenient to me to do so then the court becomes one where the rule of law no longer applies.

“If judges across the criminal justice system did the same then there would be no consistency and no respect for the law, decisions based on the personal beliefs of members of the judiciary cannot be consistent with the rule of law and the ideal that each law will apply to all equally.

“Trust in the rule of law is an essential ingredient of society and it will erode swiftly if judges make politically or morally motivated decisions that do not accord with established legal principles. Indeed I would become the self appointed sheriff if I acted in such a way.

“It is abundantly clear that you are all good people, intelligent and articulate and you have been a pleasure throughout to deal with. It is unarguable that man made global warming is real and that we are facing a climate crisis. That is accepted and recognised by the scientific community and most governments (including our own).

“Your aims are to slow or even stop the advance of global warming and therefore to preserve the planet not just for generations to come but for existing generations. No one can therefore criticize your motivations and indeed each of you has spoken individually about your own personal experiences, motivations and actions.

“Many of your explanations for your actions were deeply emotive and I am sure all listening were moved by them, I know I was. In simple terms you are good people with admirable aims.

“However if good people with the right motivation do the wrong thing it can never make that wrong thing right, it can only ever act as substantial mitigation.”

*

The Judicial Office also told reporters by email on Friday last week:

“The judge in the case pointed out that Just Stop Oil have have misquoted him and put in words he never spoke. He has sent [us] the text of what he actually said below.

“They have also quoted the line, “You should feel guilty for nothing” out of context. It was said to one of the defendants who in his evidence had said (through tears) that he felt guilty for not doing enough to save the planet for his daughter. It was not in the context that the seven convicted should feel guilty for nothing which would make no sense at all in the context of the judge having convicted them.”

*

I asked the Judicial Office whether the judge’s note was read out verbatum in court – or it it was just the basis of what was said in court.  I also asked for confirmation that the note was not prepared after the hearing.

I was told the following:

“[these] were words that the judge had prepared before sentencing and were said verbatim.  He made some other comments as part of his sentencing but these were based on notes he made in advance but were not delivered verbatim.  As there is no recording or transcript made of proceedings in the magistrate court and in the absence of fully written sentencing remarks, this was the best [we] could provide at short notice in terms of what the judge had said in his own words.”

*

If you compare and contrast the two statements – what Just Stop Oil said and what the judge said through the Judicial Office – there are three main points of comparison and contrast.

*

The first part of the judge’s comments are not in the Just Stop Oil press release, and they are a statement of general principle.  As my fellow legal blogger Matthew Scott avers, “As an abstract statement of principle that could not have been put better.”

But as Scott also correctly observes, these remarks expressly introduce a tension between “politically or morally motivated decisions” and “established legal principles”.

As such, these prefatory remarks do not really help the judge against criticism – and they do not really change the framing of what then follows.

Yes, these general remarks provide a context – but they do not render what then follows as out of context.

*

If we now jump to the end of the comments, and to the Judicial Office email, the judge, however, has a good point.

The “you should feel guilty for nothing” remark appears not to have been directed at all the defendants, but to only one and in a specific situation.

Just Stop Oil accepted this, and they amended part of their press release accordingly – though this was too late for the viral tweets.

Just Stop Oil, however, have not amended the sensational title of their press release, which still gives the impression that the statement was said to all the defendants:

*

As for the middle part of the text, there is little substantial difference between the two accounts.

Other than the paragraph “When the United Nations Secretary General gives a speech saying that the activity of fossil fuel companies is incompatible with human survival, we should all be very aware of the need for change. Millions of people, and I do not dispute that it may be as many as 1 billion people, will be displaced as a result of climate change.” – which seems an unlikely frolic for a judge to have gone on in sentencing remarks – all the other comments attributed to him seem to have counterparts in the Just Stop Oil account.

In my view, the differences can be accounted for by brief notes being reconstructed after the event into prose.

Of course, Just Stop Oil should not have presented such reconstructed comments as being verbatim.  But it is a strain to say that their version of what was said is an “entirely different account”.

Indeed, had it matched the judge’s own notes exactly, it would look as if they had secretly recorded the judge.

I asked Just Stop Oil to explain how they put their version together. They said:

“We have notes from a defendant in court who cross checked them with others that were there and also notes from the defence lawyer […] who acted for one of the defendants.
“We corrected the press release when we became aware via Crimeline that one of the remarks was said to an individual defendant and we had taken it out of context.
“We have not received any communication from the judicial office and there appears to be nothing on the website so we’re slightly bemused by the framing in some of the media articles that suggests that we had some kind of official rebuke.
“We have not seen the information that was given to the press in its entirety but it is obvious that the Crimeline account stops short before the remarks around sentencing (since it contains no information about the sentences that were handed down).
“From looking at [lawyer’s] notes we can see that several of the remarks we have reported were made after sentences were pronounced.”
So it does appear the supposed verbatim press release was reconstructed – and that the statements were not said all at the same time.

*

Which leaves the final question: was it right for the judge to say such things – regardless of the reported sequencing?

Here, we should rely on the judge’s own account of what he said.

Judges’ comments when sentencing are not a bad thing.

Every court day, up and down the country, criminal judges will say things in what are immediate situations that exhort the defendant to do better in future or admonish the guilty.

At worst, such statements are harmless or futile, and at best, such statements may be beneficial to those being exhorted or admonished, and thereby to society.

Not all sentencing remarks can or should be as impeccable as the ones published on the national judicial website.

But.

Judges can and do say things they should not say.

Here a judge was addressing protesters in respect of a highly publicised incident organised by a highly publicised pressure group.

It was entirely foreseeable that what he said would be publicised.

And even it was not foreseeable, and it was an otherwise unexceptional courtroom on a cold and routine day in Wolverhampton Magistrates’ Court, it was inappropriate for a judge to express such general political sentiments, either in sentencing remarks or otherwise.

As it happens, as someone with politics broadly as green as my surname, the sentiments expressed by the judge would be ones I would like to see expressed more often by politicians.

But imagine a latter-day Judge Pickles or Judge Argyle type judge expressing sentiments in support of what illiberal right-wing protesters had done on some other demonstration.

That would be wrong, and would call the administration of justice into question, and so what the judge in Wolverhampton said was wrong too.

*

So, in (ahem) summation: Just Stop Oil erred in the title and content of their press release, and the judge erred more seriously in making the comments in the first place, even accepting his own version of his remarks.

And the real problem, as this blog averred recently, is with the refusal by the courts to provide or allow recordings of what judges say in open court.

There is no good reason for this prohibition, and scarcely even a bad reason – it is just unthinking conservatism.

Perhaps there should be a protest organised against it.

***

Comments Policy

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 and comments will not be published if irksome, or if they risk derailing the discussion.

Why can we not record what a judge says in open court?

20th February 2023

I am currently writing a post about what was said and not said by a judge at a public hearing.

The post should be up tomorrow or the day after – I had hoped to finish it today – but it does raise a prior question: why can we not just listen to a recording and put the matter beyond doubt?

It is not as if there is a want today of technology and surveillance and recording devices available.

But the old rule remains: it is a contempt of court for a lawyer or a member of the public to record a judge.

And this is even the position when what the judge says or does not say can make the difference to an outcome of a case, or a disposal of an appeal.

Of course, there are good reasons why the evidence of, say, a witness may not be recorded, and still less broadcast.

But unless a judge is discussing matters that should be kept private then the principle of “open justice” should prevail about what the judge themselves say.

There is no good reason for this general prohibition – and there is scarcely even a bad reason.

It is a tradition, a way of doing things, which judges do not want to change.

One suspects it is because judges like to control what comes out of a courtroom as much as they like controlling what is in a courtroom.

And even the courts where there is recording, and so official transcripts can be available, judges want to have prior approval before publication.

Perhaps judges tell themselves that there should not be recordings because there may be “misunderstandings” – but misunderstandings are more likely if we have to rely on recollection and incomplete notes.

The time has come for there to be no general prohibition on recording what a judge says in open court.

****

Comments Policy

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 and comments will not be published if irksome, or if they risk derailing the discussion.

Why there should be a “no fault” compensation scheme for serious personal injuries

17th February 2023

Some of the most depressing case reports to read are tortuous claims when someone has had a life-changing injury.

The case reports are depressing for both what they say and what they do not say.

A person has a horrific injury – such as in this recent case report:

“He sustained catastrophic injuries which have rendered him paraplegic.”

The case report in such a case details the background to the injury and then – because such cases are invariably claims in negligence – there is often elaborate and somewhat artificial consideration of whether there was a duty of care and any warning, and whether there was any contributory negligence and fault.

Sometimes as in the case linked to above, the case can touch on obscure legal provisions which neither party actually had any idea about at the time.

And because there is a case report that means that there is a dispute – and almost invariably (though I do not know about the linked case) the case is contested because an insurer does not want to admit liability.

In other words: the case is really about who (if anyone) pays for the ongoing medical needs of the poor claimant.

Knowing this, it seems unfair that the monies for a person’s medical needs when there has been a catastrophic injury should hinge on whether a piece of evidence had been put in, or a finding of a fact, or the application of some hitherto unknown law.

The person’s needs are still the same.

Reading such judgments is like watching a ball on roulette wheel.

And it is rarely the resources of the nominal defendant which are at stake.

As my tort lecturer said once: the law of tort is really a branch of the law of insurance.

Some jurisdictions, such as New Zealand, have a no fault compensation fund for those who suffer injuries.

This is a better (and no doubt all-round cheaper) way than the dismal case reports where one sees a judge making finely balanced decisions that mean whether someone has their medical needs properly paid for or not.

There is a role for the law of negligence in other matters, but it seems out of place here.

****

Comments Policy

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 and comments will not be published if irksome, or if they risk derailing the discussion.