Category: Criminal Law

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.

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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.

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Cressida Dick’s criticism of the ‘politicisation of policing’ is really criticism of accountability for policing

8th April 2022

Every so often, and without irony, you will hear the phrase “treated like a political football”.

You will also hear, about some area of human activity, that “the politics should be taken out of” it  – say, health or social care or education.

There is something in such a proposition – and there are certain fundamental principles, especially about human autonomy and dignity, where there should not be politics.

For example, whether someone should be tortured or not should really not be a matter for political debate.

But.

Because it is such a nod-along phrase – the sort which will get people saying “of course” or even clap and cheer – then it is a phrase that will tend to be misused.

And it is often misused by those who do not want there to be accountability for their uses of state power.

The goal of many with state power is to be free from any practical accountability, just as it is the goal of many businesses to be free from competition.

To have a check and a balance – to have things contested – is not what many with state power want.

Sometimes such opposition to accountability is effected with laws and processes – for example the undermining of freedom of information.

Sometimes it is done linguistically – with phrases such “politicisation”.

And here we come to the departure today of Cressida Dick from Scotland Yard.

Dick is the best leader the Police Federation never had.

A shop steward, not a police commissioner – Dick confused the interests of the police with the interests of the public.

And so when public confidence was lost in her (shop) stewardship, she had to resign.

In her farewell letter, Dick criticises the “politicisation of policing”.

What Dick is really criticising is accountability for policing.

And if you make that change, the rest of her resignation letter makes a lot more sense.

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Partygate returns – and a reminder about how this still matters in constitutional terms

29th March 2022

The ‘Partygate’ problem has come back for both the Prime Minister and those who work(ed) with him in Downing Street.

Perhaps he – and his political and media supporters – had hoped the fog of war in Ukraine would obscure this ongoing political crisis from view.

But: no.

It is here again – and in this latest stage there are fixed penalty notices for a number of Downing Street staff.

These – in effect – fines appear to be just the first round, and it may be that further penalties are issued.

There may even be one issued to the Prime Minister.

Currently Downing Street is maintaining that no rules were broken – even though these fixed penalty notices mean that the Metropolitan Police have reasonably concluded after investigation that offences have been committed.

Perhaps Johnson and his staffers want ‘their day in court’ before they accept any rules were broken.

This is all engrossing political drama – even political soap opera.

So it is important to not overlook why any of this really matters.

It matters for two reasons.

First, it is about legality.

Those in government are not above the law – and certainly not above the coercive restrictions that almost-casually imposed upon the rest of us during lock-down.

(By ‘casually’ I mean that the rules were imposed often without proper parliamentary debate or scrutiny and were often published at the last moment before taking effect.)

Second, it is about accountability.

The Prime Minister expressly told the House of Commons that rules were not broken and that he was unaware of the pandemic of partying in Downing Street.

On the face of it, it looks as if the Prime Minister was lying.

Of course, in the real world, politicians lie all the time.

But, taking such a cynical view at its highest, there should still be some adverse consequence to a Prime Minister misleading the democratic house of parliament.

‘Partygate’ is only incidentally about parties – the triviality of the circumstances co-exist with serious issues of legality and accountability.

And that is why it has not been obscured by the fog of war.

The problem of legality and accountability is still there, and it needs to be addressed.

And until and unless the problem is addressed, the problem will continue to de-stabilise British politics – because it is not really about partying at all.

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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.

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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.

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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.

Well done to all who were involved.

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The United Kingdom government is rushing through anti-oligarch legislation without proper scrutiny

7th March 2022

Imagine a serious piece of proposed legislation, for serious times.

Imagine that legislation is substantial – a Bill of 64 pages.

Imagine that legislation is complex – 55 clauses and 5 schedules (the latter comprising 11 parts).

Imagine that legislation is coercive – creating at least 12 new criminal offences.

Imagine that legislation confers wide executive powers – with 20 “may by regulations” provisions for Secretary of State to legislate by fiat, including in respect of individual rights.

And now…

…imagine that proposed legislation being forced through all its stages in the House of Commons in a single day.

What could possibly go wrong?

Well.

We will now find out, for this is what is happening today with the Economic Crime (Transparency and Enforcement) Bill.

This significant legislation is being rushed through with almost no opportunity for adequate scrutiny by Members of Parliament – just so the government can be seen be doing something about Oligarchs.

This is not how fundamental legislation should be put in place.

 

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Thinking about “sanctions”

22nd February 2022

Let’s consider the word ‘sanctions’.

The word is in the news because of Russian imperialist aggression against Ukraine.

(And yes, what Russia is doing is imperialism – the notion that only the English can be imperialistic is just another way of being Anglocentric.)

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One common response to this aggression is to demand ‘sanctions’.

A demand, in effect, that ‘something must be done’.

Those demanding sanctions may not have any clear idea – or, indeed, any idea -as to what should be done as a sanction or what effect it may have.

It is enough, for them, that they are demanding ‘sanctions’ – almost as a form of political therapy.

A thing to call for, instead of admitting that there is little or nothing that can actually be done – at least short of a military (mis)adventure which would, in turn, likely be a fiasco.

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In reality, ‘sanctions’ rarely work.

They are the Yellow Cards of international affairs.

And, as in football, such Yellow Cards rarely deter – still less eliminate – foul play.

They are instead little more than a cost of business.

In practice – and I have advised as a lawyer on sanctions – they are usually business inconveniences and irritants that can be addressed and navigated.

There are many creative and ingenious ways with which a ‘sanction’ may be complied with.

Any sanction that would actually have the desired political effect would adversely affect the sanctioning state as well as the sanctioned state.

And this is because of the nature of sanctions in an economically interdependent world.

Unilateral commercial relationships are rare and so – almost by defintion – an economic sanction will have domestic effects as well as on the sanctioned adversary.

And so it unlikely that the United Kingdom would sanction Russia in a way that would significantly disrupt the flows of Russian money into London.

But.

Serious sanctions can be done – as Germany has impressively shown today with reconsidering Nord Stream 2 – although perhaps this is not a ‘sanction’ as such but a fundamental (and sensible) reconsideration of energy policy and strategy.

And that will hurt Germany – yet they are willing to take the hit.

The United Kingdom has instead merely talked the talk of tough sanctions – and so today’s announcement of a ‘package’ was unimpressive.

It is always easier to talk tough sanctions than, well, convert that tough talk into meaningful sanctions.

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One response to such scepticism about ‘sanctions’ is to ask: what else can be done?

Some even resort to saying ‘sanctions’ would have ‘symbolic’ importance.

But this is akin to ‘enshrining in law’ nonsense.

What can be done is to be wary of this form of magical thinking.

To realise that we risk misleading and bewitching ourselves.

To realise that sanctions, as with legal prohibitions, are not magical spells.

And to accept the stark hard truth that – unless we place ourselves at a severe disadvantage, or risk military (mis)adventure – there is little or nothing that can be done.

To admit to our own political impotence.

We may as well ‘tut’.

But.

Because we do not want to do that, we will blithely demand ‘sanctions’ instead.

For something must be done.

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Perversion of the course of public business – today’s clumsy Met intervention in Partygate

28 January 2022

Sometimes things are not straightforward.

And sometimes things just become more complicated.

Today was one of those times.

This morning the Metropolitan Police took it upon themselves to request that the Sue Gray report only makes “minimal reference” to matters in respect of which the police are investigating.

The effect of this intervention may be that the report is published without detail of the more damaging aspects of the Downing Street partying.

This truncated/redacted report may even “clear” the Prime Minister – at least according to his political and media supporters.

There would also be the prospect of the police investigation taking no further action, with the damaging details never being made public.

This is probably more an accident than a design – but the effect is likely to be to potentially cloak the more damaging detail from parliamentary and public view.

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It is difficult to understand the Metropolitan police position.

As breaches of the (obviously relevant) Covid rules are summary only then there is no risk of prejudicing a jury trial.

Perhaps they want to disclose information in their own way in any interviews with suspects – but such investigatory convenience should not be an absolute check.

The world should not be organised entirely for the benefit of the police – especially when they have been tardy.

Perhaps there are more serious offences afoot – the alleged direction that “mobiles should be cleaned” could, depending on circumstances, be perversion of the course of justice – and some are saying (with hope more than expectation) that there may even be grounds for charges for misconduct in public office.

But what makes the police position preposterous is that they delayed investigating at all until the Gray inquiry did the police’s job for them.

And now the police have belatedly decided to do their job, they now wish to interfere with the normal course of public business.

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All this continues to undermine political transparency and parliamentary accountability.

Inquires and investigations often take matters away from the floor of the House of Commons or the press conference, and ministers and their supporters get a rhetorical (and sometimes legal) basis for not answering questions.

“We need to wait for…”

And politicians don’t need much excuse to not answer questions.

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The Metropolitan Police have, of course, an interest in this matter.

The parties took place bang in the middle of no doubt the most heavily policed area of the UK – Whitehall.

And the parties took place while the police were freely handing out huge fines to those breaking Covid rules elsewhere.

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Had the Metropolitan Police investigated this matter properly when it should have done – and there can be no evidence before Sue Gray and her team which is not capable of being ascertained by the Police with their greater investigative powers – then the police would not now be disrupting the publication of a report.

And there is perhaps a lesson here for those who clamour for police investigations of politicians and their circles: be careful what you wish for.

Police investigations do not always go in accordance with wishful thinking.

Sometimes police investigations can pervert the course of public business.

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Two things about the launch of the Met’s Downing Street investigation

25th January 2022

Well.

Downing Street is now bing investigated by the Metropolitan Police.

And we are told that the Sue Gray report will not be ‘paused’ – and that it may even be delivered to the Prime Minister this evening, with it being published tomorrow.

What can be usefully said about this?

Perhaps two things.

First, look (again) at the Terms of Reference – that is the best corrective to getting carried away with what the report may or may not include.

In particular note that it is structured as a fact-finding exercise.

Indeed, had Gray been tasked with apportioning culpability then there may have been reason for the report to be delayed pending the police investigation.

What Downing Street gained by making it a fact-finding exercise they lost by not having a plausible excuse for it to be delayed at this stage.

And second, note that the Terms of Reference say:

“As with all internal investigations, if during the course of the work any evidence emerges of behaviour that is potentially a criminal offence, the matter will be referred to the police and the Cabinet Office’s work may be paused. Matters relating to adherence to the law are properly for the police to investigate and the Cabinet Office will liaise with them as appropriate.”

This probably means that a government lawyer has had to advise on whether the threshold has been met for evidence to be referred to the police.

And – if so – this means that on that advice, Sue Gray has been satisfied that evidence does need to be referred.

In essence: for this evidence to be referred a government lawyer and a senior official have already had to be satisfied of its seriousness.

And, in commencing an investigation, the police concur.

This does not mean that anyone is necessarily guilty.

Suspicion does not mean guilt.

But.

The evidence uncovered is so serious that a certain threshold has been met.

Brace brace.

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The Colston Four and the problem (and challenge) of legal commentary – in praise of Secret Barrister and Matthew Scott

10th January 2022

The acquittal of the Colston Four became a significant political issue – so significant that former ministers and government supporters even got to the point of dissing juries altogether.

But where was the best legal commentary – to explain what did (and did not) happen?

On state broadcasters?

On news sites?

No.

It was on social media – in particular, two blogposts done by barristers in their spare time.

One was this explanatory post by the Secret Barrister.

The other was on the blog of Matthew Scott: the actual directions to the jury.

Neither of these barristers had to do this – they volunteered to put this information into the public domain.

Neither of the bloggers did anything that could not be done by a well-resourced legal correspondent at a mainstream news site.

But there are very few legal correspondents anywhere in mainsteam media, and they would not have the time (or the editorial freedom) to provide such information for free to anyone on the internet.

The Secret Barrister and Matthew Scott provide not only an important public service but also fill a gap in what should (and is not) being provided to the public generally by news sites.

We are lucky to have them – and, given the ever-starker limitations on news budgets – we must cherish this volunteerism by legal professionals.

But what happens when such volunteerism comes to an end, for it is no longer viable for legal professionals?

Well.

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