Category: Courts and the administration of justice

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.

**

Thank you for reading – and please do support this blog, so that it can carry on for you and others.

These free-to-read law and policy posts every week-day do take time and opportunity cost to put together, as do the comments to pre-moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

You can also become an email subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

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.

*

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.

**

Thank you for reading – and please do support this blog, so that it can carry on for you and others.

These free-to-read law and policy posts every week-day do take time and opportunity cost to put together, as do the comments to pre-moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

You can also become an email subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

The suggestion that the Prime Minister give evidence to the privileges committee under oath and pain of perjury

2nd May 2022

Did you know there is a Parliamentary Witness Oaths Act?

This 1871 statute – which is still in force – provides among other things that any committee of the House of Commons may administer an oath to the witnesses examined before such committee.

And, while an examination of witness by a parliamentary committee is not a judicial proceeding, it would still be perjury for a person to lie such an oath (or affirmation) – with the penalty being up to seven years in prison.

This information comes from a fascinating and informative article at the New Statesman by Alexander Horne, a former parliamentary legal adviser.

In that article Horne contends that such an oath could be administered to the Prime Minister for any evidence he gives to the privileges committee.

If so. this would mean that the Prime Minister would be (to use the glorious legal phrase) ‘under pain of perjury’ to tell the truth to the committee investigating whether he deliberately misled parliament and/or failed to correct the record at the first available opportunity.

(The latter point is where this blog has previously set out that the Prime Minister is vulnerable, for it may be hard for him to maintain that once he had the Sue Gray report and/or any briefing for the Metropolitan police investigation that he still did not realise that he had misled parliament.)

On the face of it, administering such an oath has its attractions.

No sensible person doubts that the current prime minister lies fluently and repeatedly, and so placing him ‘under pain of perjury’ would have the advantage of concentrating his mind wonderfully.

Such an approach would also have the broader advantage of reminding the Prime Minister and others that evidence to parliamentary committees should be taken seriously – especially as the sanction of ‘contempt of parliament’ is, well, held in contempt.

Horne mentions where such oaths have been used:

“Committees rarely administer the oath to witnesses, although it has happened in recent years. The Home Affairs Committee chose to take evidence under oath in respect of its inquiry into child sexual exploitation in Rotherham. The Public Accounts Committee also controversially administered the oath to the general counsel and solicitor to the Inland Revenue in 2011.”

*

But.

It may be one thing for witnesses who are not members of either house of parliament to give evidence to a parliamentary committee ‘under pain of perjury’ – but for a parliamentarian and minister to also do so is constitutionally problematic.

That what parliamentarians say in parliament is absolutely protected at law is set out (some would say ‘enshrined’) in the Bill of Rights.

And there is the principle that the responsibility of a minister to answer questions in parliament is politically enforceable (or not enforceable), and not a matter for any form of litigation.

Imagine if the Prime Minister (or other minister or parliamentarian) is caught out in a lie before a parliamentary committee, what would then happen?

(And the 1871 legislation does not expressly provide that parliamentarians are exempt.)

Would an outside court have to adjudicate the conduct of a parliamentarian in respect of parliamentary proceedings?

It is difficult to see how such a prosecution could be easily brought – and it could result in another (for constitutional commentators, splendid) constitutional mess.

And regardless of the legal(istic) issues in this particular situation, there is a sensible wariness of converting political issues into court matters.

*

That said, however, it is unfortunate that there is so little that can be done to get the prime minister to give truthful answers in parliament.

This is certainly a constitutional problem that needs a practical solution.

The suggestion of getting a Prime Minister to give evidence to the privileges committee investigating him ‘under pain of perjury’ has the appearance of being such a solution to that problem.

The fear would be that in seeking go solve one constitutional problem, another is caused.

And so the problem remains: what can you do – constitutionally and practically –  with a dishonest Prime Minister?

*

POSTSCRIPT

Horne has provided a link to a useful post where he deals with the issues in more detail:

**

Please support this blog, so that it can carry on.

These free-to-read law and policy posts every week day do take time and opportunity cost to put together, as do the comments to pre-moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

You can also become an email subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

How one paragraph in the significant Covid and care homes judgment describes Matt Hancock’s lethal, unlawful policy

28th April 2022

One of the most outstanding lawyers I know works a lot with care home clients.

Sometime ago they told me about what happened when the hospitals started seeking to release patients into care homes at the start of the pandemic.

A hospital was trying to force a care home to take a potentially positive patient.

The lawyer advised their care home client to lock all the doors, and to not accept anyone from the hospital untested.

Robust advice yes – but it was a bleedingly obvious problem – and now the High Court has said, in effect, my friend’s legal advice was correct.

The Covid and care homes judgment handed down this week is long and complicated – 75 pages and 299 numbered paragraphs.

But one paragraph stands out – and goes to the heart of the relationship between policy on one hand and law on the other.

It is paragraph 289:

“Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

This is not an example thereby of a hard policy decision being made between competing options.

Most sensible people would say that is a matter for the government and not for the courts.

It was instead a decision which failed absolutely to take account of a relevant consideration.

As such, it was a policy decision that was not lawfully open to the decision-maker.

As those bringing the case set out, the secretary of state was the relevant decision-maker “and the public law duties fell on him personally to consider relevant considerations, exclude the irrelevant ones and be sufficiently informed”. 

How the court applied this legal principle in this case is interesting:

The court has held, in effect, that by the time the relevant guidance was issued, the risk of asymptomatic transmission was obvious and well-known – it was even being mentioned publicly by government scientific advisers.

But the government blithely put out guidance to care homes that did not even consider that risk, let alone provide for what care homes should have done to manage the risk.

The court elsewhere in the judgment rejects challenges on other grounds – and the court is careful to say that earlier stages of the pandemic, it would not have been fair or realistic for the government to have known that there was a risk.

But by the time of the April 2020 guidance, this was not the case – and the government could not pretend that was the case.

The government instead published guidance on which care homes were supposed to rely and did not care to consider the risk of asymptomatic transmission.

That took the decision out of the realm of administration and policy and into the realm of public law.

The judgment does not refer expressly to the famous Wednesbury principle, but this is an example of a decision so unreasonable no reasonable decision-maker could have made it.

And that is even after giving due latitude and deference to a government dealing with a pandemic – that offers no excuse to have got this guidance so completely – lethally – wrong.

Far from throwing their arms around the care home sector, the department of health instead threw their hands over their eyes.

And care homes should not have been placed in the dreadful predicament of having to decide whether it was safe to follow department of health guidance, or whether they should have locked their doors instead.

**

Please support this blog, so that it can carry on.

These free-to-read law and policy posts every week day do take time and opportunity cost to put together, as do the comments to pre-moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

You can also become an email subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

 

Partygate and parliament: law and policy, tactics and strategy, privileges and penalties

21st April 2022

Well.

Those were an interesting few days in parliament.

We went from a government bullishly seeking to block the prime minister being investigated by the powerful committee on privileges, to supporting the opposition motion.

This government cannot even get political gangsterism right.

Great credit here should go to the opposition parties.

Faced with a law-breaking prime minister who has said – on any view – incorrect things to parliament about the facts relevant to that law-breaking, the opposition could have gone for censure motion, or a confidence motion, or a contempt motion.

And had the opposition done so, it would have been defeated – perhaps on a whipped vote.

But instead the Labour leadership put forward a motion to which no sensible member of parliament could object, and the motion even said any consideration by the privileges committee should await the end of the Metropolitan police investigation.

And the Labour chair of the privileges committee – who had been vocal in his disdain of the prime minister on this issue – said he would recuse himself, thereby removing another possible objection.

Against this tactical savviness, the government position collapsed.

First there was to be an amendment: but that went.

Then the vote was to be unwhipped: and that went.

And in the end, there was not even a vote.

The motion went through on the nod.

Let’s just think about that.

A motion of the house of commons that a sitting prime minister should be investigated by the privileges committee in respect of four statements he made in the house about the circumstances of that law breaking went through – and not a single member of parliament opposed it.

Of course: asking for an investigation is one thing – and the committee may well not find the prime minister in contempt.

But – in and of itself – that such a motion should go through without any objection is remarkable.

One reason for the opposition’s tactical success is that Conservative members of parliament do not want another situation like with Owen Paterson – where they were whipped to frustrate a report, only for the position to be reversed in front of their eyes.

Another reason is that – as this blog has previously averred – a parliamentary majority is no barrier to Nemesis following Hubris.

Other prime ministers in command of working majorities have been brought down before between elections – Thatcher, Blair – and so there is no reason this one cannot be either.

A privileges committee investigation is a serious matter, as they have the power to recommend suspensions from the house.

Another investigation – following the Sue Gray and metropolitan investigations – will also keep this issue alive – and that is, no doubt, the strategic goal of the opposition.

The constitutional Wednesday Addams in any of us can only smile at all of this not going away.

*

What is happening here is – in effect – a parliamentary stress-test, an anxious examination of our constitutional arrangements.

What do you do with a law-breaking prime minister who has misled the house of commons?

Can this be checked and balanced?

The answer to this should not be a civil servant’s report – however independently minded the civil servant.

Nor should it be a decision by the police to issue a penalty, or not.

It is – rightly – a matter for parliament.

And this week’s deft parliamentary footwork by Labour and the other opposition parties has ensured that there will be a parliamentary answer to this particular parliamentary question.

**

Thank you for reading – and please support this blog so that it can carry on.

These free-to-read law and policy posts every week day take time and opportunity cost to put together, as do the comments to moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

The trial of Jesus of Nazareth

Good Friday, 2022

As a non-militant atheist, Easter has no special religious significance to me, but it always makes me think about the trial and punishment of Jesus of Nazareth.

We have no contemporaneous court records for that trial and punishment, just as we do not really have such records for anyone else who was tried and executed at that time – that is not a surprise.

What we do have are very early traditions that there was such a trial and punishment.

Here is, for example, Tacitus writing in the early 100s about the Roman fire of about fifty years before:

“Christus, from whom the name had its origin, suffered the extreme penalty during the reign of Tiberius at the hands of one of our procurators, Pontius Pilatus…”.

We also have records of what Roman and Jewish procedural and substantive law was at the time, though nothing about how it was applied (or not applied) in this particular case.

And we have the gospel accounts and the letters in the New Testament.

The fascinating and striking thing about the gospel accounts of the trial of Jesus of Nazareth is how secular the story is: little or nothing rests on any miracles or divine interventions from arrest to punishment.

It is just one thing after another in almost entirely human terms.

It could be a normal procedural legal drama.

The gospel accounts seek to explain the relationship between the reasons for his arrest, the manner of his trial, and the imposition of a sanction.

One day, as with other historical trials, I would like to write about this case.

(I was once asked to write an article about the trial, and I never completed it as I could not make up my mind on various aspects of the applicable law and procedure.)

And what would be nice about writing something substantial is that as nothing really rests on any miracles or divine interventions in the story of the trial and execution of Jesus of Nazareth, nothing in such an examination will ‘prove’ or ‘disprove’ the truth of what Christians believe.

It should be possible to write a detailed examination of the trial which would satisfy Christians and non-Christians.

Had the gospel writers intended for their accounts of the the trial and execution of Jesus of Nazareth to require a belief in the possibility of miracles or divine interventions then they would have not have written such secular narratives.

Instead, by setting out this dramatic story in secular terms, the gospel writers ensured that those of us who are not Christians are able to fully engage with the story.

Some will doubt or deny that the figure of Jesus of Nazareth ever existed or whether he was even tried or executed.

But given in the gospel accounts no miracles or divine interventions are claimed about the trial and imposition of the punishment, we are not trying to explain (away) anything extraordinary.

Extraordinary claims, of course, need extraordinary evidence: but there is little extraordinary in the gospel accounts of the trial or the imposition of the punishment.

The sources may be inaccurate or incomplete (or conflicting) – but they are not fantastic.

And given there are early traditions of a trial and execution – even if not of other events in the life of Jesus – then it would seem perverse to insist that it cannot have happened and was a later invention.

There is also, of course, the complicated issue of how the writers of the books of the New Testament sought to allocate responsibility for the arrest, the trial(s) and the execution as between Romans and non-Romans.

So: what do you think?

What is your view, regardless of your ultimate religious position, of the trial of Jesus of Nazareth?

**

Thank you for reading – and please support this blog.

These free-to-read law and policy posts every week day take time and opportunity cost to put together, as do the comments to moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

Boris Johnson’s Triple-Whammy of Unlawfulness

12th April 2022

Constitutional law is not supposed to be interesting.

Constitutional law is supposed to be boring.

And Boris Johnson could not make it any more exciting.

To take three examples.

First, the Supreme Court held that he gave unlawful advice to the Queen over prorogation of parliament.

(An incident that managed to engage all four of the monarch, parliament, the courts and the executive – the constitutional law equivalent of a full house.)

Second, his government actually introduced legislation to Parliament to enable it to break the law.

(Just typing that seems strange – but it happened, although the government averred that the law would be broken in a “limited and specific” way.)

And now, an even more extraordinary thing has happened.

The prime minister has been found by the metropolitan police to have broken this governments own laws on gatherings under lockdown.

And the necessary implication of this sanction is that the prime minister knowingly misled parliament when denying such a gathering took place.

He cannot even say he was misinformed, as he was at the gathering himself.

*

Johnson has not been prime minister a long time, and there are many prime ministers who have been in office far longer with far less constitutional excitement.

Of course he should resign – but that is not the point of this blogpost.

The point instead is to convey the sheer magnitude of what Johnson has ‘accomplished’ in his trashing of constitutional norms – and in under three years..

Just one of the above examples – and there have been many more, it is just those three came readily to mind – would be career-ending for a politician in any normal political system.

And that even now nobody knows if he will resign is an indication of how abnormal politics are at the moment.

It takes a certain quality for a prime minister in three years to contrive this triple-whammy of unlawfulness.

Indeed, it is difficult to conceive what he could still yet do as a fourth instalment.

Brace, brace.

**

Thank you for reading – these free-to-read law and policy posts take time and opportunity cost to put together, as do the comments to moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

A balancing exercise in action – Chris Mullin defeats a disclosure request in respect of the Birmingham pub bombings

23rd March 2022

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.

In a detailed and fascinating judgment, the judge shows how the competing – indeed contrasting – public interests in this case should be balanced.

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.

**

Thank you for reading – these free-to-read law and policy posts take time and opportunity cost to put together, as do the comments to moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

What is SLAPP?

22nd March 2022

Sometimes I give blogposts the wrong titles.

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.

*

SLAPP is a term to describe the misuse of the litigation process for the purpose of minimising or eliminating public and media scrutiny.

It is an American term and it appears to date from 1996.

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’.

*

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.

**

Thank you for reading – these free-to-read law and policy posts take time and opportunity cost to put together, as do the comments to moderate.

So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

***

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.

For more on this blog’s Comments Policy see this page.

Two reasons why today’s ‘Reclaim these Streets’ high court decision is significant

11th March 2022

The ‘Reclaim these Streets’ decision was handed down by the High Court today.

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.

*

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.

Well done to all who were involved.

https://twitter.com/davidallengreen/status/1502252517631135752

******

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.