Category: Courts and the administration of justice

A guide to today’s “Wagatha Christie” judgment – a case that should not have gone to trial

29th July 2022

Later today, at noon in the United Kingdom, the so-called “Wagatha Christie” libel judgment will be handed down by the High Court in London.

As I happen to practise in media law, I thought this may be a useful moment to explain some things about defamation law in general as well about this (for many) entertaining case in particular.

For there is one glaringly obvious feature of this case, whatever the result and regardless of how it has added to the gaiety of the nation.

This is a case that should never have gone to trial.

*

On 9 October 2019, the United Kingdom was still a member of the European Union, Boris Johnson had only recently become Prime Minister, nobody had heard of COVID-19, and Coleen Rooney tweeted the following:

The tweet is still there, and she also published this on Instagram and Facebook.

This tweet followed another one from earlier that year:

*

Now, the United Kingdom has left the European Union, Johnson is about to depart as Prime Minister, pandemic lockdowns have come and gone, and we are today finally to find out what, if any, legal liability Rooney has for publishing this statement.

*

Rebekah Vardy was not not happy with the statement – which was seen by millions.

The watching public were highly amused, and the impressive detective work set out in the statement led to Rooney being dubbed “Wagatha Christie”.

It appears that Rooney sought to settle the case at this early stage.

According to a news report during the case in The Sun that referred to a witness statement of Rooney:

That May 2020 date may be significant, as it seems to be an offer to settle before the claim was even issued.

If so, that pre-action attempt to settle was unsuccessful.

For on 12 June 2020 Vardy issued a claim in libel against Rooney.

*

Libel is a complex and, for some, counter-intuitive area of law.

In a claim for libel, the claimant has to (in general) show two things.

The first is that there was a publication in writing (or another permanent form) to a third party – and here there is no doubt.

And the second is that the publication is defamatory of the claimant, that the average person reading the statement would think badly of the claimant – and here, again, there was no doubt.

Indeed, there was no dispute between the parties that the statement – or what lawyers call “the words complained of” – was defamatory.

And once the claimant has shown these two things then (again in general) the onus switches to the defendant to show that the statement is true, or honest opinion, in the public interest, or was said on a privileged occasion, such as in court or in parliament.

In this way, it is for the defendant to do the expensive spade work of showing that they can lawfully make the allegation, and not for the claimant to disprove the allegation.

So here the burden was on Rooney to show her detective work was sound and her conclusion correct, and not Vardy to show it was unsound.

*

But.

What is the meaning of the words complained of?

The meaning is important as it would, in turn, frame what Rooney would have to show to defend this claim.

And so this would be the first matter for a judge to decide – and that was to be in November 2020.

Here it is worth noting that according to the news report above, Rooney sought a second time to settle this case, in October 2020 before that hearing, and she was again unsuccessful.

*

You may think that the meaning of the words complained of was obvious.

Oh no.

This was a matter of dispute.

Rooney (and her lawyers) contended that the meaning was that:

“there are reasonable grounds to suspect that the Claimant was responsible for consistently passing on information about the Defendant’s private Instagram posts and stories to The Sun newspaper.”

Here Rooney (and her lawyers) emphasised the references to it being Vardy’s account, rather than Vardy directly.

Vardy (and her lawyers) in turn contended that the words complained of meant:

“that the Claimant has consistently and repeatedly betrayed the Defendant’s trust over several years by leaking the Defendant’s private and personal Instagram posts and stories for publication in the Sun Newspaper including a story about gender selection in Mexico; a story about the Defendant returning to TV; and a story about the basement flooding in the Defendant’s new house.”

Vardy’s contended meaning would be harder for Rooney to prove.

At a preliminary hearing in November 2020, the judge largely agreed with Vardy and held that the meaning of the words complained of was:

“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”

This was a set-back for Rooney, and it was seen at the time as a victory for Vardy.

The judge dismissed the argument that the average reader of the words complained of would realise that it would not just be Vardy personally who had access to Vardy’s account.

(For what it is worth, I think this was an error by the judge.)

*

This decision could have been the end of the matter.

For as the judge explained:

“It is almost always helpful for the meaning of the alleged libel to be identified at an early stage. Sometimes this will lead to the end of the case, because the words are not defamatory, or because they bear a meaning which the defendant cannot defend, or for some other reason. In any event, a decision on meaning will always have a bearing on at least one of the other issues in the case.”

And the judge congratulated himself and the court:

“As this case illustrates, the process of deciding meaning is a quick and efficient one. I have heard this trial and given judgment only two months after the order for such a trial was made.”

However, it seems that the effect this decision on meaning was to make this case more complicated and time-consuming.

*

The parties then amended their pleaded cases and sought to settle the case.

According to the news report above, Rooney’s third attempt to settle the case was in January 2021, after the “meaning” decision was handed down

But for some reason the case was not settled.

Sometimes cases do not settle because one party is adamant that they want their day in court, and so will refuse any settlement offer.

Sometimes the settlement offers are too low.

And sometimes, parties can get trapped by how they are funded so that they have to continue with the case as that is the least bad option.

Who knows.

But for some reason this case continued after three reported attempts to settle, and the case was now going to become far more expensive and complicated.

*

Rooney’s legal team now had a challenge on their hands.

A further preliminary hearing, before a different judge (and who is the trial judge who will be handing down judgment), took place in June 2021.

Vardy (and her lawyers) sought to strike out Rooney’s amended case, especially references to Vardy’s close relationship with journalists at The Sun.

Rooney (and her lawyers) were now building an “inferential” case – that it could be inferred from other evidence that Vardy was providing private information to journalists and that would go to the sting of the allegation.

As the judge said: “an exceptionally close relationship between the claimant and the newspaper or journalists to whom the Posts are alleged to have been provided is one of the building blocks on which the defendant’s inferential case is built”. 

In other words: the determination on meaning had resulted in Rooney (and her lawyers) widening their case, so that it could be inferred from similar facts that Vardy leaked Rooney’s Instagram posts.

Vardy’s strike out application was not wholly successful.

For example, the judge said of one part of the application: “While these paragraphs do not go to the core issues, the allegation that the claimant had, or was the primary source for, a gossip column about professional footballers and their partners in The Sun is logically probative similar fact evidence.”

This court decision was, to invoke an analogy, where the match started turning against Vardy.

*

And then there was the fateful preliminary hearing in February 2022.

This was the hearing where the parties made applications and counter application, and sought to get certain evidence included and excluded.

The judgment of this preliminary – not final – hearing is 56 pages, with 203 paragraphs.

This judgment is where we find that the evidence of Vardy’s agent “is that in August 2021 she lost the mobile phone that she had used during the period January 2019 to August 2021. The respondent states that this occurred while on a boat trip during a holiday, when the boat hit a wave, and she accidentally dropped her phone.”

We also become aware of the following message of Vardy:

“Would love to leak those stories x”

You can understand why Vardy would want such a message excluded from evidence, but her application to exclude it failed.

And so on.

What had happened is that Rooney (and her lawyers) had followed up their widening of their case with successfully having evidence put in about Vardy and her agent leaking stories generally.

At this stage, even if Vardy succeeded in the libel claim against Rooney, it was becoming obvious that any trial would be a PR disaster for her.

Any settlement at this stage must have been preferable to Vardy.

But still the case did not settle.

Instead it went for full trial in May this year.

And the proceedings were, as I have averred, a tonic for the gaiety of the nation:

A good time was had by (almost) all.

*

Vardy can still win the case today.

Any inferential case is difficult – and proving Vardy herself leaked or directed the leaks of Rooney’s posts may be difficult.

If Rooney does not prove the following then she loses:

“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”

But.

Winning a legal case is not the same as winning in the court of public opinion.

And it may be that the costs consequences of Vardy “winning” may be horrendous if Vardy turned down a so-called “Part 36 Offer” (or similar) that offered to settle at a higher amount.

That a case like this will have four published judgments does not reflect well on our legal system.

That the legal costs will be very high – and to many obscenely astronomical – also does not reflect well on our legal system.

Libel litigation, however, can be highly technical and resource-consuming.

Instead of only the “meaning” being dealt with briskly in November 2020, there is really no good reason why the whole of the case could not have been done briskly, instead of the elaborate applications and counter-applications, strike outs and disclosures, amendments and oppositions.

And if it could not have heard briskly, it is a case that should have settled at the first available opportunity.

Libel litigation can grow like topsy, and often does.

And the point of libel litigation?

Well, supposedly the aim of libel litigation is “vindication”.

But after the PR horrors of the trial, it is difficult to see how Vardy comes out of this case well, even if she wins later today.

In seeking to vindicate her reputation, the practical effect of Vardy’s libel claim has been to undermine it.

This is a case that should never have gone to trial.

***

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“Attrition” – a guest post by Joanna Hardy-Susskind

22nd July 2022

The guest post below by Joanna Hardy-Susskind is a remarkable piece of writing, and it may be one of the best ever UK legal blogposts.

It was published yesterday on the Secret Barrister blog and it is republished here, with the kind permission of both Joanna and SB, so that it can gain the widest possible audience.

*

Attrition

In 1999, Baz Luhrmann topped the UK charts with Everybody’s Free (To Wear Sunscreen).

We used to play that song on the drive to school. I was 12. My mum drove a banger that we called Bessie. “Come on Bessie” we would cheer as she chugged up the hill. Sometimes Bessie let us down, but no one minded. She did her best. Bessie’s radio had a cassette player. I liked to watch it hungrily eat tapes and spit out a glorious pop sound. My mum played the Sunscreen song on repeat. I remember those days. I remember that song. And, recently, I remembered the words:

“Live in New York City once”, the song advised, “but leave, before it makes you hard”.

School was the local comprehensive. Students were the beneficiaries of textbooks-between- two, dicey Ofsted inspections and our very own Police Liaison Officer. We did our best with what we had. And, by pure chance, it transpired we had something better than wealth: we had luck.

I had the good fortune to be born to hardworking, tremendous parents. They taught me right from wrong and the grey areas in-between. They taught me that precisely nothing in this life was given for free. And that, for some, working twice as hard is required to even make the starting line.

I was determined. And I was lucky. I read. Ferociously. I liked the words. As an adult I sometimes pronounce words incorrectly because I have only read them in books. I occasionally do it in court. Judges look at me quizzically, my expensively educated opponents tilt their heads and I confuse them all by just beaming. “Here I am”, I think silently, “with people like you”.

I remember going with my dad to buy our first family PC. It was magnificent. I typed out the words I had read. I moved them around the page until they flowed. Until they sounded just so. I did not recognise it then, but I know it now – it was advocacy. I memorised syllabuses and mock exam questions and photosynthesis and Pi and Oxbow lakes and the Somme. An A Level was not something my school offered. So I navigated Sixth Form, UCAS, bursary and then scholarship applications. I moved word after word around page after page and I persuaded people. That I knew things. That I could pass exams. That I might have some promise.

I failed often. And, each time, I returned home to my parents and their relentless cheer. “You did your best,” my mum would say. After my Oxford interview, a rejection letter landed on the doormat. I read it and muttered “two of the other candidates went to the same school, the SAME SCHOOL.”

Sometimes, I still mutter it to myself.

But luck, like rage, has a habit of holding out. I got into Law school. Words fell into place there. Sentences and paragraphs and persuasion. I was good at it. But it took everything I had. Loans. Sacrifice. Scholarships. A brutal commute when the money ran out. “It will all be worth it one day love”, my dad would offer on our bleary-eyed 6am car journey to the station. He would drive in his slippers. I would eat cereal in the passenger seat.

To become a barrister then, you had to eat 12 dinners “in hall”. It was a heady mix of Harry Potter and a weird wedding banquet. I did not know any barristers – so I took my mum. We rode cheap off-peak trains, googled which forks to use and giggled in the Ladies’ loo after drinking Port.

In my final interview to become a barrister – with 2 vacancies for 300 candidates – I wore a second-hand suit from eBay. No one noticed. My words tumbled out persuasively. More so, it transpired, than the same old boys from the same old schools. When I got the job, I opened the box containing my barristers’ wig in our lounge. We all stared at it like it was a wild animal.

Off I went. Defending people. People who had less luck, less guidance, fewer words. Many of them hoped that the courts would be fairer to them than life had been.

The words did not prepare me for the fighting. For the people I had to fight for. The terrified 14 year old girl in custody who asked me for a tampon, the shamed 55 year old who had lost his job and stolen, the addicted 21 year old with the sobbing mother, the father concealing a wobbly lip for a son who had not done his best. “Keep a professional detachment” my elders would say and I would nod before going home to lie on my bathroom floor with a rock in my heart. On and on it went. The drivers, the employees, the teachers, the students, the children, the ordinary people who thought court was no place for them until it was. Human story after human story. Stories I recognised. The grey area between right and wrong expanded. And I fought. A first court appearance then paid £35. I would have done it for free if I had not been shouldering a five-figure student debt. The cases got more serious, the money got a little better, but the relentless conveyor belt never let me exhale. I measured my success in precious ‘Thank You’ cards I stored safely in a box.

When luck runs low, I read them.

The finances have never kept pace with the fight. With what is required of me. With what is required of the mass of legally-aided barristers who ultimately have to rely on successful partners, generous families or sheer luck to get by. But, money aside, it is the conditions that deliver the sucker punch. Without a HR department the job takes and takes. There is no yearly appraisal. No occupational health appointment. No intervention. No one to assess the toll. There is a high price to be paid for seeing photos of corpses, for hearing the stories of abused children and for sitting in a windowless cell looking evil in the eye. There are no limits as to how much or how often you can wreck your well-being, your family life, your boundaries. No limit to how many blows the system will strike to your softness. The holidays you will miss, the occasions you will skip, the people you will let down. The thing about words is that they sometimes fail you. When you emerge from a 70-hour week and notice the look in the eyes of the proud parents who propelled you here – but miss you now.

And then, slowly, but to the surprise of absolutely no one, my colleagues – my friends – began to leave. Now, everything runs late. “Counsel will have to burn the midnight oil,” the nice Judge chuckles to the nice jury before I go home to lie on my bathroom floor again. The cases keep coming. The backlog grows. I am increasingly numb to the cruelty of telling broken human beings that the worst thing that ever happened to them will not be resolved for years.

Trial dates creep into 2023. Then, 2024. I edit police interviews for free. I prepare pre- recorded cross-examinations for free. I write sentencing notes for free. I teach new barristers for free. I offer suicide-prevention advice for free. The government issue statements saying everything is fine and I read them over and over trying to work out how they did not realise that justice costs something. That this is all worth something. That some of us gave everything to be here.

And so, it was this week I was reminded of Bessie and the song and those words.

“Live in New York City once, but leave, before it makes you hard”.

Perhaps being a criminal barrister is like living in New York City. Do it once, sure. But maybe I should choose a time to leave. Before it makes me hard.

I find it too heart-breaking to look that decision squarely in the eye. But many have managed it. Perhaps they had no choice. Criminal Bar Association figures show an average decrease in real earnings of 28% since 2006. Our most junior barristers work for less than the minimum wage. We have lost a quarter of specialist barristers in 5 years. 300 walked away last year alone. We miss them. Their talent and company and humour. Their help in shouldering a backlog that now stretches to the horizon.

Though sometimes I feel it, I am not alone. This summer, my (learned) friends took brave and bold action. To make this profession a better, fairer place than when we arrived. For those who choose to remain. For those brave enough to leave. And for those of us, hopelessly in love with this job, who are yet to decide.

But, most importantly, we must make this vital, important job viable for anyone who is about to begin. Regardless of their starting line.

Joanna Hardy-Susskind is a criminal defence barrister.

***

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Boris Johnson did not “see off” Brenda Hale – so why did he say that he had?

 

On 25 July 2019 it was announced that Lady Hale would retire as President of the Supreme Court:

The retirement was to be on 10 January 2020.

This retirement was because of the operation of the mandatory retirement age for judges, which in the case of Lady Hale meant she had to retire by when she became 75 on 31 January 2020.

Lady Hale’s retirement by 31 January 2020 was thereby inevitable.

There was nothing she – or anyone else – could do about it.

This retirement announcement was made the day after a certain Boris Johnson, the now departing Prime Minister, took office.

*

Yesterday the now departing Prime Minister Boris Johnson said in the House of Commons:

“With iron determination we saw off Brenda Hale and we got Brexit done.”

But it was not Boris Johnson and his government that “saw off Brenda Hale” but the Judicial Pensions Act 1959 (as amended and unamended by subsequent legislation).

So what did he mean?

In terms of practical litigation, the statement also makes no sense.

The two key Brexit cases that reached the Supreme Court under the presidency of Brenda Hale – known as Miller 1 and Miller 2 – were cases which the government lost.

Indeed, Miller 2 – which held that Boris Johnson’s attempt to prorogue Parliament was unlawful – was when that unconstitutional antic was “seen off”.

So presumably he does not mean that, either.

*

What I suspect he means is that he got “Brexit done” despite the various litigation attempts to shape, delay or frustrate Brexit.

The two Miller cases were, strictly speaking, constitutional cases where the judiciary upheld the rights of the legislature against executive overreach.

But the more ardent supporters of Brexit did not – and still do not – see it that way.

And there were certainly other – less well conceived – legal cases which sought to stop Brexit, such as the “Article 50 challenge” cases.

If this suspicion is correct, then Brenda Hale is being used by Boris Johnson as a shorthand for all the legal challenges and obstructions which were made to Brexit, real or imagined.

Or, alternatively, Brenda Hale is being used as a shorthand for all those constitutional checks and balances that prevented Boris Johnson doing as he wished with the ship of state.

If so, these interpretations would accord with something else the Prime Minister said yesterday:

“The Leader of the Opposition and the deep state will prevail in their plot to haul us back into alignment with the EU as a prelude to our eventual return.”

Perhaps it should not be a surprise that Boris Johnson would use the phrase “deep state” at the despatch box – a term used by certain political conspiracy theorists.

Perhaps him using that terms is an indication of the deep state we are actually in.

If the above is correct, then the meaning of what Johnson said yesterday is that he saw off the “deep state” in its judicial manifestation and got Brexit done, though the “deep state” in its other manifestations are now seeking to reverse Brexit.

This is not a healthy frame of mind.

And if this thinking (or lack of thinking) becomes more widely shared, it does not bode well for a healthy polity.

*

Even if Boris Johnson was correct and that, in some meaningful way, he had “seen off” the President of the Supreme Court, then it would still be worrying that this was something any Prime Minister wanted to boast and gloat about.

Such gloating and boasting – well based or not – signifies a hyper-partisan approach to politics, the separation of powers and the rule of law.

As with other checks and balances in the constitution, Boris Johnson sees them as things to be defeated and for those defeats to be seen as personal triumphs.

Even though those who clap and cheer Boris Johnson in doing this would be the first to complain, from constitutional first principle, if an opposition politician such as Jeremy Corbyn or Keir Starmer did the same.

And imagine the sheer fury if any judge boasted and gloated that they had “seen off” Boris Johnson.

Boris Johnson’s conspiratorial hyper-partisanship is dangerous, and so it is a good thing that Boris Johnson is now going.

But just as Trumpism has continued in the United States even after Donald Trump’s departure from the presidency, the worry is that this Johnsonian frame of mind, with its deep state conspiracy-thinking and contempt for checks and balances, will linger.

For, if anything, that is what needs to be “seen off”.

***

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Of Partygate, questionnaires and police discretion – some footnotes to yesterday’s post

27th May 2022

The response to yesterday’s post – offering an explanation as to why the current Prime Minister only received one fixed penalty notice over ‘Partygate’ – was rather overwhelming.

The post was linked to by both the Guardian and Guido Fawkes – which must be rare – and commended by a former (proper) Lord Chancellor and a former Treasury Solicitor (the government’s most senior legal official) – and the post had over 12,000 hits.

The thing is that I do not know – could not know – if that explanation were true.

The current Prime Minister is entitled to legal advice and the protection of legal privilege – and, in a way, it is not a bad thing for a Prime Minister to have access to competent legal advice.

(The problem, of course, is that ready access to competent legal advice when facing criminal sanctions is something which everyone should be entitled – and that entitlement is under constant threat by government cuts to Legal Aid.)

The only merit of my explanation was that it explained the facts as we understand them better than any other explanation, without resorting to a conspiracy theory.

In an interesting thread today, the journalist Peter Walker has set out some useful background which also supports my suggested explanation.

https://twitter.com/peterwalker99/status/1530131395133284352

https://twitter.com/peterwalker99/status/1530132726048858112

The decision to issue a notice is not a judicial decision – no judge or court is involved.

The decision is made by a police officer, who must reasonably believe that an offence was committed.

The safeguard against people having sanctions based on just police discretion is that an individual can refuse to pay the penalty and, as the dreadful phrase goes, have their day in court.

Payment of a penalty also does not, by itself, constitute an admission to a criminal offence such that would, like accepting a caution, give you a criminal record.

If the police officer does not reasonably believe that an offence was committed then no notice will be – or should be – issued.

The suggested explanation I set out yesterday may not be compel a court or convince a jury or a judge – but that was not the test.

The suggested explanation had to be enough for a police officer not to reasonably believe that an offence had been committed.

And which police officer would gainsay that a senior minister had to perform an, ahem, ‘essential function’ of leadership of thanking staff and making them feel appreciated?

It was not much of an excuse, but it was enough for the job that it needed to do, and it looks like it did it.

*

But stepping back, there is a certain strangeness – if not idiocy – in investigating possible wrongdoing by questionnaire.

Especially if – as it seems – the questionnaires were not issued under caution (though I have not seen a copy of the actual questionnaires in question).

As any good regulatory lawyer would tell you – a regulator is only as good as the information to which it has access.

And so – as techies would say – Garbage In, Garbage Out (or GIGO).

The current Private Eye states that certain senior figures did not even return their questionnaires – or may have not completed all the answers.

From their perspective, that was prudent – even if maddeningly frustrating for the police and for those who wanted those who wanted the partying Downing Street staff and advisers to face sanctions.

One fears that senior figures – with access to competent legal advice – were advised not to complete or return the questionnaires, while more junior figures – not aware of their options and perhaps even trying to be helpful – basically wrote out their own fixed penalty notices.

If this is the case – and few will know for certain – then what was being actually sanctioned was not wrongdoing, but naivety.

And, if so, that would be one of many things which make ‘Partygate’ an unsatisfactory moment in our constitutional and political history.

*

Lastly, on questionnaires. here are the wise words of one of the greatest jurists never to be appointed as a judge, E. L. Wisty:

“… they’re not very rigorous. They only ask one question. They say ‘Who are you?’, and I got seventy-five percent for that.”

**

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Four possible consequences of Partygate

19th May 2022

Partygate, again.

Today the Metropolitan Police announced the end of their investigation.

This means that, in small part, the Partygate issue comes to an end.

But there are at least four things which may now flow from the circumstances of the unlawful gatherings at Number 10 during the pandemic.

*

The first, of course, is publication of the Sue Gray report.

This unseen report now has many expectations loaded onto it.

It is useful to remind yourself of her terms of reference.

Whatever is – and is not – in her published report, it is more likely than not to be in accordance with these terms of reference.

It is also useful to remind yourself of her truncated interim ‘update’.

That update indicated – though not in any definite way – where there may be problems for Downing Street when the final report is published (see this blog’s previous post here).

Two paragraphs of the update, in particular, are worth reminding yourself of:

“ii. At least some of the gatherings in question represent a serious failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time.

“iii. At times it seems there was too little thought given to what was happening across the country in considering the appropriateness of some of these gatherings, the risks they presented to public health and how they might appear to the public. There were failures of leadership and judgment by different parts of No 10 and the Cabinet Office at different times. Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”

Whether the report leads to any political change – and whether it is, in fact, the timebomb suggested by the earlier post – is, of course, determined by politics and the remarkable capacity of the current Prime Minister to evade accountability.

*

The second consequence of Partygate is – on the face of it – potentially more significant constitutionally.

This is the House of Commons committee’s investigation into whether the Prime Minister misled parliament.

Here a difficulty for the Prime Minister is not so much whether he realised the parties he attended were unlawful gatherings, but when he knew.

This is important because, as this blog has previously set out, it appears that the Prime Minister is not only under an obligation to put the record straight, but also to do so at the earliest opportunity.

This point was well explained by Alexander Horne in this thread:

Even if the Prime Minister did not realise at the time the gatherings were unlawful, he no doubt knew once he saw the Sue Gray report and/or was advised in response to the Metropolitan Police investigation.

The committee may perhaps find that Boris Johnson did tell parliament at the first available opportunity, or it may hold the rule somehow does not apply, or it may censure him.

Again, the political consequences of any censure – or sanction – are not predictable with the current Prime Minister.

But misleading the House of Commons and not correcting the record as soon as one can are still serious matters, even in this age of Johnson, Brexit and 2022.

*

A third possible consequence of Partygate is the worrying normalisation of politically motivated reporting of opponents to the police.

This blog recently set out this concern – and the concern has also been articulated by newspaper columnists:

This is an issue distinct from the obvious truth that politicians should not be above the law.

This issue is about when there is political pressure for there to be police intervention in respect of opponents, where such pressure would not be applied in respect of one’s own ‘side’.

Unless a report would be made to the police in the same circumstances when it was a political ally rather than an opponent, the report is being made on a partisan basis.

And routine goading of police involvement – and their coercive powers – on a partisan basis is not a good sign in any political system.

*

The fourth possible consequence is more optimistic.

The covid regulations were an exercise in bad and rushed legislation, where – even accounting for it being a pandemic – insufficient care was given to the rules imposed and to how they were enforced.

This was pointed out at the time – by this blog and many other legal commentators.

The fact there was a pandemic was used as an excuse for shoddy drafting rather than it being the reason.

And part of the shoddiness was, no doubt, because these were seen by those in the executive as being rules for other people – that is, for the rest of us.

One perhaps positive thing about Partygate is that senior officials, politicians and advisers in the government now are aware that such rules can apply to them.

This may mean that in the event of another pandemic requiring similar rules, the provisions will have more anxious scrutiny before being put in palce and enforced.

That said, of course, it is perhaps also possible that the government will just make sure that future rules expressly do not apply to Whitehall.

But we have to take what possible positives that we can from this gods-awful governmentally-self-inflicted political, legal and constitutional mess, known as Partygate.

**

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What may be the real problem with the”Wagatha Christie” case

18th May 2022

The “Wagatha Christie” case is currently adding to the gaiety of the nation.

And as the wise Marina Hyde avers in her Guardian column, the case indicates the truth that one should avoid civil litigation wherever possible.

https://twitter.com/MarinaHyde/status/1525099409624686593

But as the legal journalist John Hyde points out in his Law Gazette blog, avoiding litigation is what litigation lawyers spend a lot of their time advising clients to do.

*

Litigation is risky and expensive – and not only for the clients.

The notion that the lawyers will be dancing all the way to the bank whatever happens is not correct – some outcomes will not make them dance at all.

And, as this blog has previously pointed out, a high-profile and/or high-value civil trial usually means there has been a failure somewhere.

(In general, a civil trial is where one party sues another, as opposed to a criminal trial where the state prosecutes a party.)

This is because the process of civil litigation is geared towards settlement of a dispute before it reaches trial.

Trials – like battles – are expensive and unpredictable.

Trials also hand practical control of the case to a third party – the court.

So just as the prudent general seeks to prevail against their opponent without risking an open battle, so does the prudent civil litigator.

Civil litigators generally prefer to settle on the best possible terms than risk any trial.

This is especially true in a case where either the evidence or the law is stacked obviously in favour of one party and against the other.

On the face of it – the “Wagatha Christie” case is one-sided – at least in respect of what has been reported from court and the documents disclosed.

And few would say that the claimant has come out of the hearings well, on any view of the overall merits.

This is not a case that should ever have gone to trial.

So – how has such a case ended up in court?

One possible explanation is that the court reporting and publicly disclosed documents are misleading us onlookers, and that the case is finely balanced – and both sides are confident of victory.

This does happen in civil litigation sometimes – though usually be the time the two sides know the respective cases, and the evidence to be relied on, both the parties’ lawyers will usually have a common assessment of the merits of the claim.

A second explanation is that one or both of the parties is/are determined to have ‘their day in court’.

In other words: it is open to a client to disregard the advice of their lawyer to settle on the best possible terms.

And here, even if Rebekah Vardy wins the claim, she has lost overall.

There is a third explanation.

This is that the costs of the litigation – the various overall costs consequences and elaborate funding mechanisms – now mean that the parties are locked into a trial, as the chance of success outweighs the burden of costs they may incur.

In essence, the parties are going to trial because it would now be too expensive to settle.

You then have the spectacle of a trial going ahead which the parties probably do not want, the lawyers no doubt advised against, but it is now too expensive for settlement.

I do not know if this is what has happened in the ‘Wagatha Christie’ case – I will leave the detective work to the peerless Coleen Rooney.

But there has been a failure somewhere.

It is a mistake for onlookers to assume that the parties and the lawyers necessarily wanted this spectacle to go ahead – they may not have had an alternative once the case had got so far.

And so the problem is not necessarily the bad decisions of a party or the bad advice of lawyers, but a systemic problem with high-profile and/or high-value civil cases.

If so, then it is the civil litigation system that is adding to the gaiety of the nation, and not just the parties and their lawyers.

Charles Dickens would understand.

**

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The outlaw ministry

12th May 2022

From time to time on social media you will get people asking about the difference between something being ‘unlawful’ and being ‘illegal’.

And whenever this happens you will invariably get some wacky funster replying that the difference is that one means someone is acting outside the law and the other is a sick bird.

Ho ho, every time.

But.

The real problem with this government is not that it acts unlawfully or illegally.

The problem is that it acts as if it is an outlaw – that for the government, law does not apply in the first place.

It is not so much that the government cares about breaking any law, or about whether it has any legal basis for what it does.

Instead, the government does not see law as even applying to it.

To use a lovely Scottish word – the government acts as if it is ‘outwith’ the law.

The law applies to little people, and not this government.

‘Law and Order’ is a campaigning slogan, but not a principle of government.

As this blog has previously averred, this government engages in three types of lawlessness.

First, it often conducts itself without any lawful basis.

Second, it seeks to introduce legislation that will enable it to freely break the law.

Third, it permits law-breaking at the highest level.

It is difficult to imagine a government with less respect for law, and for the rule of law.

This is not so much a government of law breakers, but a government of outlaws.

The law is an inconvenience which can be disregarded as and when it is inconvenient.

Such an approach has its hedonistic attractions, but it cannot end well.

Brace, brace.

 

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This is not a proposal for “a Bill of Rights” – this is semi-waffle in support of vanity legislation

10th May 2022

Today it was announced in the Queen’s Speech that there will be a “Bill of Rights”.

Some are alarmed at this proposal – and warn darkly (and perhaps correctly) that this will be a fundamental attack on the Human Rights Act 1998 and on the protections we have under the European Convention on Human Rights (ECHR), to which that Act gives effect in domestic law.

One plausible consequence of the proposal is that there will no longer be a a law called ‘the Human Rights Act’ in our statute books.

This post, however, will take a sightly different approach.

This post is one more of derision than of alarm.

For the proposal set out today is all rather pathetic.

*

Let us start with the Queen’s Speech.

The relevant portion of the speech was this:

“My Government will ensure the constitution is defended. My Ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.”

There is already a Bill of Rights – at least in the law of England and Wales.

That law from 1688 or1689 (depending on how pedantic you affect to be) is famous and significant, and it is one of few ancient pieces of legislation that those with an interest in such things can name.

Any government bringing forward a new (or revised) Bill of Rights would presumably be proud, promoting the legislation as a highlight of its new parliamentary schedule.

But this latest “Bill of Rights”?

It was 800 words into a 940-word speech

Even in the accompanying briefing for journalists, it made only page 118 of a 140-page document.

The Bill is not so much an initiative, but an afterthought.

*

And now we turn to content.

There is no real content.

The government has not published the proposed legislation, and indeed the Ministry of Justice (MoJ) is not in a position to publish the proposed legislation.

The MoJ told me today that the consultation on the reform only closed on 19 April and the responses are still being reviewed.

This lack of content can also be seen in the briefing note:

“The purpose of the Bill is to:

● Introduce a Bill of Rights which will ensure our human rights framework meets the needs of the society it serves and commands public confidence.

● End the abuse of the human rights framework and restore some common sense to our justice system.

The main benefits of the Bill would be:

● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate.

● Curbing the incremental expansion of a rights culture without proper democratic oversight, which has displaced due focus on personal responsibility and the public interest.

● Reducing unnecessary litigation and avoiding undue risk aversion for bodies delivering public services.

● Tackling the issue of foreign criminals evading deportation, because their human rights are given greater weight than the safety and security of the public.

The main elements of the Bill are:

● Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.

● Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose ‘positive obligations’ on our public services without proper democratic oversight by restricting the scope for judicial legislation.

● Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant. 

● Recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award.”

*

These three groups of bullet-points – ‘purpose…main benefits…main elements’ – indicate padding, and indeed the bullet-points are interchangeable between the sections.

Almost none of the bullet-points are concrete.

If anything they are almost all talking-points.

Some are semi-meaningless waffle – “restore some common sense” and “responsibilities exist alongside rights” are slogans rather than thoughts.

And to the extent any of these bullet-points do have meaning, their import is not to protect rights but to limit rights.

This is not a “Bill of Rights” but a Bill to, as far as possible, remove or restrict rights.

Only one bullet-point – and you can check if you doubt me – is even positive about substantive rights: “● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate”.

*

Most significant of all – and this is what the government wants you to miss – is that this Bill of Rights will not substantially affect the position of the ECHR in the United Kingdom.

And this is because the Good Friday Agreement requires the United Kingdom to give effect to the ECHR in Northern Ireland.

If you look carefully at the proposals, there is mention of making sure the courts do not go further than the ECHR – “UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court” – but there is not (express) mention of getting rid of the ECHR in domestic law or any (express) suggestion that the United Kingdom follow Russia in leaving the Council of Europe.

So this proposal is, in part, an exercise in misdirection – an attempt to make it look like the government is ending the Human Rights Act but pretty much keeping the ECHR in domestic law.

*

Perhaps the government will put forward a Bill with more concrete proposals.

Perhaps the Lord Chancellor – facing chaos and crises in the court and prisons systems – will achieve his own political priority of replacing the Human Rights Act with some law that does much the same with a different name, but with added (and pointless) tinkering.

Perhaps any of this is worth the effort of new primary legislation – where (if needed) any changes could be done by amendment to the existing legislation.

Perhaps.

But.

The impression given by this proposal is that the new “Bill of Rights” is legislation for the mere sake of legislation.

None of the bullet-points – you can check – individually or together add up to the need for a new statute – let alone something with as hallowed and grandiose a title as a “Bill of Rights”.

On the face of today’s proposals, this is mere vanity legislation.

**

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The real problem with Beergate – and with Partygate

9th May 2022

There are many ways to look at the ‘Beergate’ political story – about the police investigation into what Leader of the Opposition did and did not do at (or after) a campaign function.

One way is to follow the political soap opera – and to ponder if the Leader of the Opposition will resign if he faces a penalty, if this will then backfire on the government supporters who have made this such a political story, and if voters will get tired and dismiss this and ‘Partygate’ with the shrug that says ‘they are all the same’.

Another way is to anxiously scrutinise the applicable law and to query whether the gathering was for work purposes or not.

And there is a third way, which requires stepping back to wonder if something more significant is going on.

Do ‘Partygate’ and ‘Beergate’ signify a shift in standard political tactics towards using reports to the police of one’s political opponents and encouraging investigations and sanctions?

For it is one thing to campaign against one’s political opponents.

But it seems another to actively seek that they face police attention.

Of course, from time to time – and in a society under the rule of law – politicians will get arrested, prosecuted, convicted and punished.

And that can be in respect of ‘political’ offences – such as regulate electoral matters – or more straightforward criminal activity.

Sometimes such investigations may have potentially important political implications – such as the cash for honours scandal about fifteen years ago, or the more recent parliamentary expenses scandals.

But in each of these cases, the involvement of the police seemed exceptional – and not part of the mundane, day-to-day politicking of Westminster.

And generally it seemed police involvement was not weaponised for political advantage (though there were one or two exceptions of minor Members of Parliament who liked referring matters to Scotland Yard).

Now, however, police involvement could not be more central to politics.

The fate of the Prime Minister and of the Leader of the Opposition depend, in part, on exercises of police discretion.

Not even a court is involved – just decisions of police officers as to whether it is reasonable to believe covid rules were broken.

(It would only become a matter for the courts if those police decisions are not accepted.)

Perhaps all this is just a one-off – just an extraordinary result of intrusive pandemic regulations that are no longer in place.

Or perhaps this marks a shift to using police involvement as a regular aspect of political activity.

So before we get carried away – one way or another – with clamouring for penalties to be imposed on which politicians you like least, perhaps we should think about where this is going.

For it may not be a good place for our politics to go.

**

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The Lord Chancellor’s extraordinary tweet about the Tracey Connelly case

6th May 2022

Here is a tweet from the Lord High Chancellor and Secretary of State for Justice (and a qualified solicitor):

It is a tweet that goes to one of the most important issues for any constitution: the respective powers of the executive and the judiciary in individual legal cases.

Tracey Connelly, as is widely known, was the mother of Peter Connelly, who died in 2007.

In 2008 she was convicted of “causing or allowing the death of a child or vulnerable person” – though not of murder or manslaughter – and she was sentenced to indefinite imprisonment for public protection, with a minimum term of five years.

It was reported that the then Attorney General considered referring the sentence to the Court of Appeal for being unduly lenient – but it seems no such referral was ever made, no doubt because the sentence was appropriate for the offence for which Connolly was actually convicted.

(Steven Barker was also convicted of this and another offence involving another child – and in respect of Peter Connolly’s death the sentence was for twelve years.)

That minimum of five years for Tracey Connelly expired in 2013 – and it appears she was released on licence from 2013-15 – but almost ten years later she is in prison.

This is because the Parole Board has, until recently, repeatedly refused her parole.

As the parole specialist Andrew Sperling explains in this useful and important thread, the test for the Parole Board is preventative rather than punitive:

Sperling also helpfully sets out that the Ministry of Justice participated in the Parole Board’s deliberations.

The Ministry of Justice officials all supported Connolly’s release.

This is the Lord Chancellor’s very own department.

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The Lord Chancellor even had the opportunity to challenge the Parole Board decision – and that was rejected.

In a fully reasoned and detailed decision, each of the Lord Chancellor’s grounds for his application were rejected.

The judgment even contained these remarkable paragraphs:

Ouch.

The Lord Chancellor – seriously – instructed counsel to say that the Parole Board had not taken proper account of his views, but he did not and could not identify what those views were.

That is embarrassingly bad.

*

The Lord Chancellor now wants to do things differently.

He wants to be able, as a politician and a minister, to personally overturn decisions of the Parole Board even when his own department’s officials support release.

Presumably this would be a power that would be exercised in those few cases that are selected by the media to be notorious.

*

What is the Lord Chancellor’s motivation for wanting a ministerial veto?

Here, again, Sperling is spot on:

*

Let us look again at the extraordinary tweet of the Lord Chancellor:

There is no sensible doubt that the cruelty in the Connolly case was substantial and warranted significant punishment.

And the court sentenced her for that offence.

A sentence which the government did not (and probably could not) challenge at the time as being unduly lenient.

The question is whether it is now safe for Tracey Connelly now to be released.

That question has been considered, with reference to relevant material, by the Parole Board, an independent body, with input from the Lord Chancellor’s own officials.

An answer was then reached by the Parole Board, which the Lord Chancellor could and did challenge in court, and the the Parole Board’s answer survived that challenge.

And the answer the Parole Board reached was ‘yes’.

*

The issue is not that the executive should not have any role in questions of sentencing and probation in individual cases.

The executive should and does have a role.

The executive can refer seemingly unduly lenient sentences to the Court of Appeal.

The executive can make representations and submissions to the Parole Board.

The executive can apply so as to challenge a decision of the Parole Board.

This is how the separation of powers should and does work in practice.

Punishments should not be at the personal fiat of any minister, even that of the Lord High Chancellor.

**

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