I was born and brought up in the Birmingham of the 1970s, and like many others I had family and family friends who could well have been killed in the Birmingham pub bombings.
There is a powerful public interest in that crime being properly investigated and those guilty being convicted.
Six innocent men were convicted for the bombings, and their prosecution and punishments was an appalling miscarriage of justice, perhaps one of the worst miscarriages of justice in English legal history.
There was a powerful public interest in that miscarriage of justice being exposed and corrected.
And the journalist (and later politician) Chris Mullin was the one who did most to expose and correct that miscarriage of justice.
What happens when two powerful public interests such as the above collide?
That was the issue before the recorder of London at the Old Bailey.
On one hand, those police officers investigating the bombings want access to materials held by Mullin.
You can see why the police would want this – especially if it would contain direct evidence that would aid a successful prosecution.
But that does not necessarily mean the police should get it.
The reason is that the material which Mullin holds was given to him on the basis of confidentiality, so that he could expose the miscarriage of justice.
Without that assurance to his source, Mullin would not have been given that information, and without that information the miscarriage of justice would not have been exposed.
And so the public interest in exposing that miscarriage of justice would have been defeated.
And in a compelling conclusion the judge holds that in this case there should not be an order for disclosure of the material.
It is unfortunate that this means that any prosecution of those guilty of the bombings will not be assisted by this material – but such a prosecution should not be at the cost of undermining the public interest in exposing a miscarriage of justice.
Not only is the judgment compelling, it also is another recent example of a judge taking Article 10 of the ECHR and the right to free expression seriously.
It is a good judgment in a difficult case, and it is recommended reading for anyone interested in practical law and policy.
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Yesterday, the post here had the title: Is there a SLAPP problem in the English courts?
This is a good – and urgent – question.
The problem was that the post did not answer the question, and instead it set out some preliminary views about SLAPP – that is an acronym for ‘strategic litigation against public participation’.
What I should have done before setting out these preliminary views was to explain SLAPP – and I am sorry I did not do so.
Some people even told me on Twitter that they had to google ‘SLAPP’ so as to understand my post.
This post seeks to remedy the deficiency of yesterday’s post.
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SLAPP is a term to describe the misuse of the litigation process for the purpose of minimising or eliminating public and media scrutiny.
There have been, in turn, various anti-SLAPP laws in America.
The reason why SLAPP is now seen as an issue here is a spate of illiberal legal claims brought (or threatened) in the High Court in London which appear to have the ulterior motive of minimising or eliminating public and media scrutiny – in particular scrutiny of various oligarchs and foreign corporations.
The United Kingdom government has just announced that it is considering introducing anti-SLAPP laws here and it has put out the a call for evidence on SLAPP.
The government describes SLAPP as follows:
“The term SLAPPs is commonly used to describe activity that aims to discourage public criticism through an improper use of the legal system. SLAPPs have two key features:
• They target acts of public participation. Public participation can include academic research, journalism and whistle-blowing activity concerned with matters of societal importance, such as illicit finance or corruption.
• They aim to prevent information in the public interest from being published. This can be by threatening or bringing proceedings which often feature excessive claims.”
Another word for this phenomenon is the splendid portmanteau ‘lawfare’.
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Now that I have set out a defintion of the term, do have another look at yesterday’s post – which I have now re-titled.
You will see that I aver that although SLAPP is a pejorative and contested term, it is also a useful term as long as you bear its limitations in mind.
In further posts on this blog I am going to look at some recent cases that have been described as SLAPP cases so as to answer the following questions:
1. Is there really a SLAPP problem in the English courts?
2. If so, what is the nature of that problem?
3. And if it is a problem, is it a problem capable of being solved?
I think it is important to ground any consideration of reform in an understanding of actual examples, else one can end up with a mismatch between proposals and problems.
For such a mismatch is what happened, in my view, with the campaign which led to the Defamation Act 2013, where the eventual legislation that was passed would have done little or nothing in respect of the various poster-cases on which the campaign relied.
(With my old Jack of Kent blog I was part of the early part of that campaign for libel reform, though I had and have concerns about the law that was finally enacted.)
Whether there is an actual SLAPP problem and, if so, whether it can be solved is a key issue for our legal system and how that system impacts on public debate.
I would like this blog – with its posts and excellent commenters – to be part of informing the debate on that issue.
I am sorry my post yesterday was running before it was walking – and I hope this further post has put that right.
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In a welcome judgment, it was held by the High Court that the Metropolitan Police had acted unlawfully in respect of blanket banning a vigil during lockdown.
The ruling is detailed and thorough, but on the first reading there are two points that seem worth making.
First, the court placed the police decision-making under anxious scrutiny.
This was instead of the court’s usual deference to police decision making – where the long arm of the law is kept at more than arm’s length.
This is refreshing approach instead of the more familiar nodding-along by judges at police conduct.
Second, and just as refreshing, the court took the legal right to freedom of expression – under Article 10 of the ECHR – seriously.
This was rather than the common lip-service paid by judges – who invariably mention free expression rights only to allow them to be interfered with.
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This must have been a challenging case to bring, to prepare for and to argue, and so there should be considerable credit for the applicants and their legal team for doing so.
Indeed – in getting the court to overcome its traditional deference to the police and in getting that court to then take free expression rights seriously – it is difficult to imagine a harder such case to fight and to win.
On 9 March 2022 the following was stated by Bob Seely MP in the House of Commons:
Bob Seely – A number of lawyers, representing oligarchs, have written threatening letters to national newspapers saying that reporting our words can be unlawful & seriously defamatory… they're now trying to intimidate Members of Parliament pic.twitter.com/57G4n3iH4E
“`That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
From time to time, (ahem) spirited lawyers do threaten parliamentarians in respect of things said in parliament (here is a 2010 example) – but the lawyers should not do so, `and any legal claim would fail.
(The position is less clear-cut for witnesses at select committee hearings – but that is a topic for another time.)
This means there is nothing that a law firm can do with a legal threat to Seely or any other parliamentarian about what they say in parliamentary proceedings.
The MP or peer has absolute privilege – though there are rules in both houses of parliament about what can and cannot be said about certain matters – and those rules are not justiciable in court.
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But.
Those reporting – or indeed repeating – what is said in parliament do not have this same absolute protection.
The protection is instead ‘qualified’ – and so is subject to a condition.
This condition is (in general terms) that the report – or other repetition – is not malicious.
This therefore means a person can be sued for defamation (and perhaps for other things) for reporting or repeating what is said in parliament when in doing so they acting maliciously.
The onus is on the claimant to show this malice.
So this means that a potential claimant can sue – and thereby threaten to sue – a person who is reporting or repeating what is said in parliament.
The potential claimant and their lawyers would have to meet a high threshold if there were to issue such a claim and demonstrate malice – and it may be that they will fail to do so.
But nothing at law stops them issuing the threats.
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How this all should work in an internet age where footage from parliament TV can be captured and circulated instantly is not clear.
For example I would not publish the footage of Seely above until and unless I saw it reported in Hansard, as I would want the protection of the 1840 Act.
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There is the eternal question of what constitutes ‘malice’.
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And there is also a question about whether lawyers for potential claimants can make over-stated libel threats when they have no evidence of malice.
As Professor Richard Moorhead explains there are general professional conduct rules about what can and cannot be in a threatening letter from a law firm:
I’m not suggesting it’s effective (suspect they will be cautious) but SRA can investigate and prosecute if circs right https://t.co/PDYvF6ORFS
The Solicitors Regulatory Authority states the following about solicitors’ professional duties in respect of disputes:
In essence – libel claimant lawyers cannot (and should not) threaten legal proceedings lightly – and if they do, there can be professional repercussions for those lawyers.
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Perhaps there should be further protections.
For example: in respect of infringements to registered intellectual property rights (eg trade marks and patents), the Intellectual Property (Unjustified Threats) Act 2017 prevents lawyers from making baseless threats.
Perhaps this should be extended to defamation threats.
And barristers and solicitors are under general professional obligations not to allege fraud without satisfactory evidence.
Presumably it would not be impossible for a similar rule to prevent baseless defamation threats, especially where there is no evidence of malice.
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None of the above suggests – or is intended to suggest – that any particular claimant firm is making such baseless threats.
Instead the above points to the protections that those receiving the threats have (or should have) so as to be confident that such threats are not baseless.
And it also points to the high hurdle that any claimant firm needs to meet so as to allege malice when making such a threat.
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We do have the gap in the law between absolute privilege for parliamentarians and only qualified privilege for those outside who report and repeat what those parliamentarians say.
It is a gap which in my view should be filled, and one which is not sensible (or sustainable) in the internet age.
But it is gap that has not yet been filled.
And so yes – as Seely said, it is possible for a law firm to threaten newspapers and others for what is said in parliament.
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For completeness, this is not a new problem either for parliamentarians or for those reporting on what they say.
Those with good memories will recall the Trafigura matter – which was not about defamation but confidentiality – where a member of parliament said something which seemed to be subject to (and thereby in breach of) a court injunction.
So none of this is a new issue – and it is one that goes to the very essence of a separation of powers.
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Disclosure: I happen to be a qualified solicitor, and I still help clients facing libel and other claims, and so this post is informed by that experience.
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Yesterday’s short post turned out to be rather popular, with a number of informed and insightful comments.
(Perhaps that is a hint that I should keep these blogposts succinct!)
The question puzzling me today is whether those clamouring for United Kingdom sanctions against oligarchs realise that it is not a good thing for the government to have summary powers to deprive individuals of possessions and other property.
When the government uses summary powers, say, to deport members of the Windrush generation, or to remove a person’s British citizenship, then liberal rightly are concerned.
Individuals have rights, and there are things no person or group may do to them, without violating their rights.
And if all individuals have rights, and oligarchs are individuals, then it follows that oligarchs have rights.
These rights may not be absolute – and property rights especially can be subject to interferences by the state.
But such interferences need to have a lawful and reasonable basis and follow due process.
And this is the same for oligarchs, as it is for anyone else.
That the government cannot just deprive people of possessions and property by mere ministerial diktat is not a bad thing in a liberal society.
And those who clap and cheer at the prospect of possessions and property being taken by the state without any lawful and reasonable basis, and without due process, should be careful what they wish for.
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There are two ways by which those with public power will act lawfully.
The first is self-restraint: that ministers and officials will act lawfully because, in essence, they want to do so.
The second is by enforcement: that ministers and officials who act unlawfully are open to challenge in the courts and can also face action from the police or other regulatory bodies.
So: if not the first, then the second.
But hopefully the first, which is better for everyone, apart from public law litigators.
The problem is what happens when ministers and officials do not care for self-restraint?
Then we have to go to the second stage, all too quickly.
But then there are new problems.
Who decides, for example, which cases to litigate?
How are those challenges to be financed?
And what if there is nobody in a position to litigate a case?
What is there – ultimately – to stop lawless behaviour by those with public power?
These questions are important – and they are not easy to answer.
One solution is to have non-governmental organisations litigate these cases, in the public interest.
But this brings new problems.
Pressure groups can have their own agendas – and some see litigation as an aid to fundraising and campaigning, rather than a thing in itself.
(When I was legal adviser to a pressure group party to a case that went all the way to the supreme court, I was careful to ensure that there was not a whiff of any ulterior motive and that the focus – correctly – was on the litigation.)
Too many pressure groups litigating elides the distinctions between politics and law.
And some may be tempted to blame the pressure groups.
But.
That is to partly see the problem the wrong way round.
The primary reason why so many non-governmental organisations are litigating is because of problems with those with public power.
The pressure groups in court are (at least) as much a consequence of poor quality policy-making and rule-making by ministers and officials.
In essence: better quality policy and rule-making will mean fewer subsequent legal challenges by pesky pressure groups.
But that would mean ministers and officials facing up to their own failings.
And it so much more easy to blame the pressure groups instead.
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Today the speaker of the House of Commons said he would like parliament to be “nice”.
For this, and for insights generally, listen to this clip to the end:
Commons Speaker Lindsay Hoyle says that while Boris Johnson’s comments on Keir Starmer and Jimmy Saville yesterday were not out of order, he’s far from happy with them
Like courts, parliament is a place for conflict and for those conflicts to be resolved.
And, again like courts, parliament has developed conventions and an etiquette for smoothing the jagged edges of that conflict.
“The honourable member” is the parliamentary equivalent of “my learned friend”.
Courts – at least civil courts – have also rules on when a person can be accused of dishonesty.
It is not an allegation that can be made by a lawyer lightly.
But it is an allegation that can, if there is evidence, be made in certain circumstances.
In parliament an allegation of dishonesty cannot be made – at least in debate.
An allegation of dishonesty has instead to be made in a substantive motion – see the commentary here.
As the historian Robert Saunders avers, this rule against accusing in debate other members of parliament of dishonesty was part of a wider understanding:
As this illustrates, the rule exists because lying to the House was once regarded as such a serious offence that it required a full parliamentary debate & contempt proceedings. We've lost the sanction against lying, but retained the sanction against those who draw attention to it
So we now have the ridiculous situation where nothing practical can be done to stop the Prime Minister – or any other member of parliament – from being dishonest…
…and if another member of parliament – grandstanding or otherwise) points this out in debate, it is that other member of parliament that is thrown out of the house of commons.
One can understand how the rules of the house of commons came to end up like this.
But that does not make the rules seem any less daft.
The solution, however, is not “niceness”.
Politeness, yes, and decorum and respect – just as courts (usually) have politeness and decorum.
But courts – while usually calm and polite and respectful – are not “nice”.
Courts can be places of horrible and raw human drama and conflict, where often difficult decisions have to be made that will, in turn, often ruin the lives of the parties involved.
To regard them as “nice” is to confuse form with substance.
A parliament also has to deal with often difficult decisions that will ruin – or even end – the lives of people at home and abroad, sometimes millions of people.
A parliament is a place of conflict and high tension – with immense consequences for real people.
As such, like a court, it is sensible to take off the rough edges of conduct and vocabulary, so as to take the heat and aggression out of exchanges.
But the underlying tensions will still be there – and these tensions need to be recognised if they are to be resolved.
Those tensions cannot be cured by “niceness” – and, indeed, a refusal to recognise those tensions risks turning those tensions into contradictions.
And that will not help anybody.
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Today – with my lawyer’s head on – I spent the day in an actual court at an actual hearing, my first since at least 2019.
And the dynamic was absolutely different to online hearings, so much that it felt like going back in time with Bill and Ted or the Doctor.
Not just different in quality, but different in the very nature of the advocacy and the the interaction with the judge.
I happen to be a great fan of things being done virtually whenever possible, from parish council meetings to parliamentary committees.
I am disdainful of ceremony and ritual, and of the theatre of politics and the law.
I do not like politics and law to be cosplay exercises that are better suited to historical enactment societies and fan conventions.
I would place wigs and gowns into the museums in which they belong.
If judges really want to be called ‘lord’ and ‘lady’ and be ‘knights’ and ‘dames’ there should join a mock medieval weekend club.
But.
Strip away all of the daft paraphernalia, there are still the intellectual and forensic exercises that do not need stage props to make then interesting, even compelling.
And such exercises in the same room are radically different to lots of muted faces on a zoom call.
I was not expecting this.
I thought virtual hearings had superseded the need for actual hearings.
But I was wrong.
Some things cannot be replaced by a virtual substitute.
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“The Meghan Markle court victory was not that legally significant.
“The Mail on Sunday litigated a weak case and they lost it, without even managing to get to trial.
“The senior editors would have been advised against publication – the Mail on Sunday have very good lawyers – but they chose to publish anyway, knowing the legal risks.
“But the case has immense cultural and media significance.
“The newspaper chose to fight a weak case, despite the legal problems. This could only be because they had a non-legal objective.
“But also important was that Markle decided to press her case, instead of letting it go like other royals would have done.
I thought it may be of interest to add a little to my quote on this blog.
High-profile litigation often exists on two levels – how it is played out in the media, and what is actually happening as a matter of hard litigation.
And here, there were may reports in the media that framed Markle in a certain way.
But the Mail on Sunday case was always weak at law – and in the end it was so weak that it did not even get to trial.
Weak cases are rarely fought in civil litigation – the weaker side will usually tend to settle as soon as possible.
And so the interesting question is why it was fought – and in the answer to that question will be the genuine significance of this case.
The case is less significant in its detail than in its very existence.
The case itself has almost no legal significance: the applicable law was so obvious that Markle got summary judgment, despite the array of legal skill and talent employed by the newspaper.
But the cultural and media significance is – perhaps – profound.
Something seems to have changed.
But what?
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A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.
This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.
Juries do not always get things right.
But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.
The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.
The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.
But that is not the ‘rule of law’ – it is something darker and nastier instead.
Others are fretting that the verdict creates a ‘precedent’.
It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.
Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.
The real upset is that a court heard the evidence and acquitted the defendants.
This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.
One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.
And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.
One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.
That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.
And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.
But juries are juries – they make mistakes, but they are independent of State prosecutors.
And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.
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