Category: Legal practice

The problem of PDD – the Public Display of Defendants

5th April 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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There is perhaps a deeper and more difficult question here.

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

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

But.

This sometimes backfired.

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

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

(Image credit)

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

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

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

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

This is fundamental.

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

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

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

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

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

The PDD becomes the thing.

And this would be a mistake.

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

The old adage works the other way round too.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Cute baby dragons and the law of copyright

3rd April 2023

There has been another amusing (at least to outsiders) copyright case.

This one is about cute baby dragons.

You do not often get – usually earnest – case reports with illustrations like this:

And it is not often that a judge gets to start off a judgment with a couple of paragraphs like these:

This is all splendid stuff – and this judgment adds to the gaiety of the world of intellectual property law, if not to the gaiety of the nation.

This judgment is well worth reading in its own right – and you can can read it here – and the purpose of my post is not to summarise the case, but to offer some commentary from the perspective of someone fascinated with both the practical law of copyright and the lore of fantastical creatures.

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On the face of it, the case was weak – and two key weaknesses stand out.

First, there was no direct evidence whatsoever of copying.

Copyright is usually about copying – the clue is in the word copy-right: it is (or should be) the law which regulates rights of copying the works of others.

In this case, any copying was to be inferred – for example by whether the defendants had access to the original work.

The judge makes short-shrift of this:

“[…] the question for the Court is whether there has been actual copying, and that requires access and not just the possibility of access. However, that access may either be evidenced directly, or it may be inferred from the possibility of access and other High Court Approved Judgment […] That inference must, of course, be properly drawn. But where there is only a possibility of access and an inference cannot properly be drawn that the alleged infringer actually did access the original work, then there cannot be a finding of copying.

The claimant was not even able to show that the work had been accessed:

“…the Claimant has not satisfied me that access by the Defendants has been evidenced or can be properly inferred.”

The second – related – weakness is that dragons are a fairly generic subject.

One claimed similarity was that both the dragons breathed fire.

Well.

That is what dragons tend to do.

Had the two works, say, had fire-breathing baby wombats…

…then that would have been a remarkable coincidence which may need explanation.

But it is perfectly possible for two creative minds to concurrently conceive of a cute baby dragon with fire-breathing difficulties.

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What does require explanation, however, is how a case as weak as this ever got to a hearing, let alone a judgment.

In civil litigation, few threatened claims ever get litigated, and few of those claims that are litigated ever get to a hearing.

This is because most civil claims are either not continued with when their weaknesses are pointed out, and those which do continue tend to get either thrown out at an early stage or settled.

Those cases – especially in the expensive High Court in London –  that end with a public judgment are rare.

And so when we get a judgment like this, one question to ask is: how on (Middle-)Earth did this case get to trial?

I am not privy to any legal materials other than the public judgment, but I think one clue may be in the successful counterclaim.

The defendants sought two remedies against the claimant.

The first was a (positive) declaration of non-infringement – which would go further than merely defeating the claim in public:

“There is no dispute that the court has the power to grant a declaration of non-infringement, taking into account justice to the Claimant, justice to the Defendants, whether it would serve a useful purpose and whether there are any special reasons why or why not the Court should grant the declaration […]. The Claimant has not suggested any special reasons why it should not be granted, and as I have made clear at the start of this judgment, I consider that it would suit the useful purpose of making clear to the public and the industries in which the Defendants and their creative partners work that the allegations of copyright infringement impugning the integrity of their creativity have been rejected by this Court, providing some justice to the Defendants without any appreciable prejudice to the Claimant.”

The second was for what is called a publicity order:

“…there is no dispute that the Court can make a publicity order against a party who unsuccessfully alleges infringement, where there is a real need to dispel commercial uncertainty […]. This is a discretionary, equitable remedy and the discretion must as always, be exercised judicially, taking into account all the relevant circumstances of the case. I accept the Defendants’ submission that any commercial uncertainty caused by the bringing of this claim for copyright infringement against them has been magnified by the publicity campaign carried out by the Claimant over the past 3.5 years, including around the trial itself. [Claimant’s counsel] submits that she was entitled to publicise her claim and I do not disagree with that. The quid pro quo is that, her claims having been rejected by the Court, the Court will require her to publicise the judgment and order made against her in order to endeavour to redress the balance.”

If this was a claim that could have been knocked-out by the defendants at a preliminary stage, or settled as a nuisance claim, but the defendants insisted instead on going to trial, then obtaining these two very public remedies may have been an understandable case strategy.

The claimant’s use of publicity was very much a two-edged dragon-slayer.

And the claimant’s solicitors were also robust in their use of publicity:

The solicitors’ tweet linked to this spirited (ahem) puff piece:

 

In the end, the claimant suffered adverse comment in the judgment:

“[the claimant] was a little cagey, I felt, about a series of press releases in which she made allegations of copyright infringement against John Lewis, which she drafted and released to the media in November 2019, December 2020 and November 2021. She first said that she released them as she considered that it was in the public interest to do so, and then said that she gained confidence from public support. It was put to her that the press releases were made in order to promote the sale of her books and the financing of a proposed musical based on FFD. At first she denied it, but then accepted that they were, in part, for self-publicity. She denied deliberately releasing them to coincide with the launch of the John Lewis adverts in each year, and sought to say, in effect, that was mere coincidence, and she had chosen the timing as certain particular stages of these proceedings had been reached.”

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Presumably the claimant was advised that bringing any legal claim means that she would have to be prepared to go all the way to trial.

For although most civil claims settle, the paradox is that to obtain a worthwhile settlement you have have to be prepared to go to court if your case does not settle.

And the claimant was presumably also advised that any adverse public judgment would more than offset any gains from publicity along the way.

The claim looks just – just – about arguable – but without any evidence of access, let alone copying, and with a subject being something as generic as dragons – it was never a claim that had any strength.

And given the implicit attack on the integrity of the creatives working for John Lewis, there was always a serious risk that the defendants would just let it go to court and apply for the two remedies that they obtained.

It was a daft case to bring.

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The judgment, however, is a useful document.

For it not only provides a fable of what happens to a weak case that ventures into the dragon’s cave of the High Court, it also provides an informative and detailed account of a creative process.

As such it is a judgment that should be read by anyone – lawyers and non-lawyers – who is interested in the media.

And, indeed, the High Court has, helpfully, self-published its own illustrated version.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Who is your favourite fictional lawyer – and why?

22nd December 2022

Over at Mastodon,  I asked the question of who is your favourite fictional lawyer – and why.

Click here to see the interesting replies.

Who is yours – and why?

The less obvious selections the better – so let us all take Rumpole, Mason, Finch, Saul and Hutz as given.

Personally, I have a soft spot for Jonathan Harker – a newly qualified real estate solicitor going that extra mile for a demanding non-dom client.

Though, given the reality of mundane legal practice, I also have a soft spot for that scrivener, Bartleby.

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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.

The passage of legal time

Winter Solstice, 2022

Today is traditionally the “shortest day” of the year.

Though, of course, one cannot say anything as bold as that on the internet without somebody somewhere taking it upon themselves to type out a reply saying you are wrong: “actually, a day is still 24 hours long, technically” or “actually, a day is not scientifically 24 hours long exactly, technically” or “actually, not in the southern hemisphere”.

But this is the season of goodwill, even to reply guys, so this is a short post on the passage of legal time.

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Law has – or has had – its own rhythm of time.

In England, time ran from 1189 AD.

Before then, it was actually time immemorial, technically.

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Until 1963, Acts of Parliament were not formally referred to by the year in which they received royal assent, but by the session of parliament under the relevant monarch:

As you can see above, the very Act which made the change to modern dating was known as “CHAPTER 34 10 and 11 Eliz 2” notwithstanding the short title provided for in section 2.

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Case reports of a certain age also do not refer to the year of the case but to the volume number of the edition of the law reports, such as this famous case from the ninth volume of the exchequer reports at page 341:

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In the courts themselves, the “terms” were more important than any other time period, which Dickens captures well in the first sentences of Bleak House, before riffing on how long the case of Jarndyce v Jarndyce has taken:

“London. Michaelmas term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. […]

“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it.  […]

“The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world.”

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Outside of court, the commercial world was more far dominated by quarter days than calendar months.

(And, of course, until 1752 the start of the calendar year was reckoned as on the quarter day of 25th March rather than anything more rational.)

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So a step into legal history is akin to stepping into a TARDIS or Marvel’s Time Variance Authority or an airport departure lounge – that is say, it like stepping into a world where the passage of time runs differently, if it can be said to run at all.

The notion that the English legal system corresponded with the year of lay people is a fairly recent notion.

And so reply guys correcting lawyers on dates will always run the risk of a rejoinder or surrejoinder of “well, actually…”.

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Have a happy Solstice, and thank you all for following this blog.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

 

 

Law vs Lore

8th December 2022

When I decided to start a Substack I also had to decide what to call it.

I could not call it “law and policy” as that is the name of this blog.

Dear old folkloric wizard “Jack of Kent” is safely dead and buried.

And so I settled on “law and lore” as that put together two things which not only interest me but also are more closely connected than many people realise.

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Let me explain.

Many of those reading this blog will not be lawyers and so have had little need to look up the raw black-letter texts of the law – in statutes, case reports and elsewhere.

Even those of you with the unfortunate affliction of being a lawyer, will not always have read the black-letter texts of every law about which you will have a view or an understanding.

And in society generally, a great deal of the law in practice is what people believe it to be – or should be.

“You cannot do that.”

“I cannot do that.”

“That is not allowed.”

“I have my rights.”

“Technically you are not allowed to do this.”

“Technically if you do this you don’t break a law.”

And so on.

Entire areas of law are, in practice, mini belief systems where people are confident about what the law is, free from ever looking it up: data protection, health and safety, consumer rights, Magna Carta.

And on the political plane, belief is (or was) a great deal of our uncodified convention: a general sense of balance and self-restraint.

This all fascinates me.

I have often wondered what an alien looking down would work out about our laws and legal system just by watching what people do and do not do.

Would such a Martian’s account correspond to what our legal texts say about the law?

And so my view is that to understand law in practice, one has to have an understanding of lore, which I see is helpfully defined online as “a body of traditions and knowledge on a subject or held by a particular group, typically passed from person to person by word of mouth”.

This is not to say that it is consciously invented: those with strong opinions about the law usually believe that they are actually correct.

Sometimes there is a close relationship between law and lore – in, for example, mercantile law, the practices of business folk often give rise to enforceable legal obligations.

And sometimes there are stark discrepancies: for example, data protection in practice often has no relationship with data protection as set out in law.

I would like to explore this distinction between law and lore more in future posts in particular areas.

Let me know if you have any ideas for subjects of such posts.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

We are not only in the age of easy answers but also in the age of easy-to-avoid questions

28th November 2022

Somebody over on Twitter thoughtfully dug up something I wrote back in 2017:

https://twitter.com/sunildvr/status/1595914638109048832

I think the piece – which links Brexit with the Iraq invasion and other follies – holds up well.

But I also now think the problem identified is only part of the problem.

This because “easy answers” are only possible when hard questions are easily evaded.

For example, one of the most depressing features of contemporary political discourse is the frequency of answers that begin with “I will take no lectures from…”, “I give no apologies for…”, “what people want to know is…”, “what the public expects is….”, and, of course, “let me be absolutely clear….”.

These non-answers render almost all political interviews – and many parliamentary questions – pointless.

Few questions can land, and accountability is brushed off.

And what is most depressing: those watching and listening do not seem to care.

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This blog has previously averred that the problem is not so much that politicians lie but that voters do not seem to care about being lied to.

And so, until and unless voters care about being lied to, then politicians will get away with their dishonesty.

Similarly, until and unless voters care about politicians not answering questions, then politicians will get away with their evasions.

Often this is not the fault of the interviewer or other questioner.

There are some cracking questions asked of politicians.

But there are not many cracking answers.

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There is a fundamental disconnect about accountability in our politics.

At law, of course, a witness will be under pain of perjury.

(And the professional advocate asking the questions will be under their own rules about what questions can be properly put.)

There is an attractive notion that ministers, for example, should also be put under pain of perjury for their answers.

Attractive – but misguided.

The solution to the failure of accountability in parliament is not, in my view, to make parliament more like a court.

It is to make those in and watching Parliament care more about the standard of answers.

As it stands, neither the Speaker nor anyone else is personally responsible for ensuring that questions are properly answered in Parliament.

Instead, as with the investigation into Boris Johnson, it is left to a committee some months later to make a determination or not.

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Rather than some paper reforms or legislative changes, it is the culture of Parliament which is most urgently in need of reform.

Members of Parliament, on both sides of the House of Commons, need to care more about the answers they are given, and to be less tolerant of evasions – even if the questions are from political opponents.

For when questions have purchase – where questions cannot be deflected – then non-answers and easy answers have no hiding place.

Politicians showing leadership on this matter makes it more likely that the public will come to care more about what they are told – and what they are not told.

And that is the real answer to the hard question of how political accountability and scrutiny is made more effective.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Of “echo chambers” and “preaching to the converted”

10th November 2022

Some places – like courts and legislatures – have shared rules for discourse.

But courts and legislatures are not “echo chambers”.

Certain things are not readily said, and certain hard things are to be said softly.

This is not because there are not disputes – and some differences may be fundamental and life-changing.

It is because shared rules for discourse enable constructive engagements and facilitate important exchanges.

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But.

For some on the internet, the slightest suggestion that there can be shared rules for discourse triggers (ahem) the instant accusation that you want to be in an “echo chamber” or that you “want to preach to the converted” or want to be in “a bubble”.

These phrases – clichés – are usually substitutes for thought.

Yet so accustomed are many to the shoutiness and rancour of internet exchanges that the merest suggestion that there can be shared rules for discourse is seen as some sort of assault on “free speech”.

Shared rules are not, however, undermining of dialogue – they instead make meaningful dialogue possible.

Shouting at people – either in real life or on the internet – is a form of monologue, especially if it inhibits the other person from engaging, or saying something they would like to say.

As such the real echo chambers and preached at choirs are not platforms where there are shared rules, but places where such rules are disdained.

Places like Twitter.

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On this blog I will write things which a number of readers will disagree with: Brexit (where I am ultimately neutral in principle, though critical in practice), codified constitutions (where I am sceptical), electoral reform (where I am wary), and so on.

And the commenters on this blog – many of whom provide comments that are better quality and more informed/informative than my head post – will engage, often with other perspectives.

You can then form your own view.

Pre-moderation and my “irksome” rule prevents comments derailing the discussion.

(And, in practice, few comments are not published.)

As such, I do not think this blog is an “echo chamber”, or that I am “preaching to the converted” (though I sometimes wish I could convert more of you to my idiosyncratic views).

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In practice, accusations such as “echo chamber” and “preaching to the converted” can be rhetorical devices to shut down unwanted forms of discourse.

The important thing is that if you want a platform that suits you then you should be free to use a platform that suits you.

And do not be afraid of comments such as “echo chamber” and “preaching to the converted”.

The curious incident of the “absolutely devastating” Johnson legal opinion is now even curiouser

27th September 2022

You will recall the “absolutely devastating” legal opinion provided for the then prime minister Boris Johnson.

This was in respect of the work of inquiry of the House of Commons privileges committee into whether Johnson had committed a contempt of parliament in respect of his seemingly misleading statements on the floor of the house.

On 1st September 2022, it was reported on a newspaper website:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.’”

And on the front page of that newspaper’s print edition dated 2 September 2022 we were told:

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This would have been huge, if true.

The capital-o Opinion in question was this – signed by two barristers as instructed by a leading criminal firm of solicitors.

The Opinion is also dated the same day as the newspaper website article: 1 September 2022.

This must mean that the source of the “absolutely devastating” quote either was referring to a draft form of the Opinion or was providing a view the same day that the Opinion was signed.

We now know that the cost of this legal advice was between £112,700 and £129,500 of taxpayers’ money, as the following tender information was published by the government on 2 September 2022:

(Hat-tip Aubrey Allegretti, here and here.)

This tender information indicates there was no competitive procurement exercise: the government seems to have gone straight to the leading criminal defence firm in early August 2022.

That firm, in turn, instructed two public law barristers (not criminal law specialists).

What is remarkable about this procurement is that the government has its own legal service, with many specialists on matters of parliamentary procedure.

(Which is obvious, if you think about it, given the close working relationship between departments and Parliament.)

There is no obvious good reason, if this was a governmental matter (rather than a matter for Johnson as a Member of Parliament) why this advice could not have been arranged by the government legal service who would have instructed barristers on the Treasury panel.

Indeed, it is odd that this was not done – especially as the junior barrister involved is already on the Treasury panel.

Why were the instructions routed through an external law firm and not the Treasury Solicitor – especially as this is not a criminal law matter?

Who authorised this procurement and use of public money?

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Indeed, as this blog has already averred, it is not obvious that this was a legal matter at all, let alone a criminal law matter.

The matter is entirely one of parliamentary procedure – and is not thereby justiciable by any court.

In my view there is even force in the argument that the Opinion does not contain any legal opinion.

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We now know that on 2 September 2022 – the day after the Opinion was dated and the “absolutely devastating” quote was given to the newspaper – that Johnson wrote to the privileges committee:

One curious point here is that he refers to a previous letter to the committee of 12 August 2022 – which is four days after the date of the end procurement law advice, see:

This must mean that the decision to procure external legal advice preceded his letter of 12 August 2022, and so presumably that letter was also informed by the external advice obtained.

You will also see in this letter that Johnson says that “[i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” that he was “placing a copy of the legal opinion in the Library of the House and on the gov.uk website`’.

This is odd.

For as the expert in parliamentary procedure Alexander Horne points out:

There can be no good reason why the Opinion was not just submitted to the committee without publicity – especially if the content of the Opinion was genuinely “absolutely devastating”.

Johnson mentions that he is publishing the letter on the government website [i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” .

But these “ exceptional circumstances” are not particularised, and the committee itself is the means of “public and Parliamentary scrutiny”.

The only plausible explanation that fits the available information is that the Opinion was published on the government website so as to place media and public pressure on the privileges committee.

This would explain how the Opinion went from being finalised, the “absolutely devastating” quote being given to the media, the sending of the 2 September 2022 letter and the publication of the Opinion the same day:Given that publishing the Opinion would mean that legal professional privilege may have been waived (to the extent that the Opinion was covered by legal professional privilege in the first place), and given it would also mean that the Opinion would also not be covered by parliamentary privilege, the publication of the Opinion on the government website was a high-risk strategy.

The only explanation I can think for this is that the Opinion was commissioned by Johnson for the purpose of that publication.

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As this blog set out, the Opinion is not strong.

This is not just my view as a random legal blogger, but also that of the professor of public law at the University of Cambridge.

Indeed, there cannot be many weaker legal opinions that have ever been published.

That the Opinion was weak has now also been stated by the parliamentary committee itself, in a special report on the Opinion.

The committee in a mere six pages of its report refutes (and not just rebuts) the twenty-two page Opinion.

The committee’s report is, well, absolutely devastating.

The language is extraordinarily strong for such a report – for example, at paragraph 12:

“We consider this concern to be wholly misplaced and itself misleading.”

At paragraph 6, the committee says the Opinion“is founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law”.

And so on.

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Caption: legal commentators reading the committee report

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The committee, which is being advised by a former Lord Justice of Appeal who was president of the tribunal service (who can be expected to know about procedural fairness), could not have been more brutal about the merits of the Opinion.

And this is a committee which has Conservative members as well as opposition members.

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This whole exercise is rather strange.

This blogpost, like the previous blogpost, has not named the lawyers – and this is because we simply do not know what their respective instructions were.

And, as such, it would be unfair to name them in this context.

This is not just libel-speak – and there is nothing in this post which should make you think worse of any of the lawyers involved.

A lawyer is only as good as their instructions.

Instead the criticism should be for Johnson, who appears to have sought to bring media and public pressure to bear on the privileges committee by using public money to procure an opinion to be placed on the government’s website.

There was no obvious reason why this was a matter for the taxpayer, and there is no good reason why the Opinion was published on gov.uk on 2 September 2022.

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Perhaps the committee will find there was no contempt.

Perhaps the matter will just go away.

Perhaps there will be a political feeling that the former Prime Minister has been punished enough.

Who knows.

But what is certain is that there should be fresh consideration of the procurement of and publication of legal opinions by ministers (of any party).

Something rather irregular happened here, and it is not the sort of thing which should happen again.

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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.

The comments policy is here.

 

Lawyers as brands, and “legal opinions” as franchised products – on the nature of legal opinions

5th September 2022

Friday’s blogpost on that “devastating” legal opinion has been very popular – with over 30,000 views.

But there were some things missing.

And one omission in particular was deliberate.

The post did not mention either of the authors of the opinion.

This is because, for the purposes of the blogpost, it did not matter who the authors were of the opinion.

The authors could have been two unknown newly qualified barristers at some obscure chambers.

Or the authors could have been the ghosts of Thomas More and Edward Coke.

It did not matter.

And this is one of the great things about law – for it is the content of a given legal document that usually matters, and not the identity of the lawyer.

In this way, a pupil barrister or trainee solicitor can sometimes trump a QC or a partner, just as a cat can look at a king.

(And this is one reason why it is so important that all lawyers should have access to a fully resourced law library, rather than such facilities being only for top chambers and big law firms.)

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The omission was also deliberate in that so many other pundits were placing huge reliance on the reputation of one of the opinion’s authors, David Pannick.

(Pannick, for example, acted in the two Miller cases against the government and he is regarded as the leading barrister in England on constitutional and public law matters.)

It was almost as if he had been instructed just so it could be said: “look, this is what even Pannick says”.

As such, it was almost as if he was being used as a brand, rather than as an advisor.

A similar thing recently happened, you may recall, with the attempted use of the Treasury Devil, James Eadie, to say that the Northern Irish Protocol Bill was lawful under international law – see my posts from June here and here.

As I then described: what appears to have happened was that the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel – the Treasury Devil; a clever compromise was reached where it would be referred to him on the basis of certain assumptions, so as not to undermine the convenient legal advice; and the Devil, while accepting those assumptions, provided an unhelpful view on the merits of those assumptions.

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In both cases, there seems to be a cynical exercise to get a convenient-seeming opinion from [Pannick/Eadie] so that it could be said that this distinguished lawyer had supported it.

Here, the barrister involved is not to blame.

Seriously.

The so-called “cab rank” rule means, among other things, that a barrister cannot refuse an instruction just because of the identity of the person instructing them.

Once the Prime Minister and his chosen criminal defence firm instructed the authors of last week’s opinion, those authors had little choice but to accept the instruction.

And Pannick – himself a parliamentarian – has a record in dealing with matters concerning parliamentary procedure, such as his support for Anthony Lester.

Who knows what the authors of the opinion thought about their work being used in the way that it was?

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If a legal position is being urged by politicians or pundits just on the reputation of the lawyer who has (supposedly) endorsed it – be it Pannick or the Treasury Devil or anyone else – then it is suspect.

For if the legal point is sound, the reputation of the lawyer is irrelevant.

And if the legal point is unsound, the reputation of the lawyer will not save it.

This is especially the case when – with both the Pannick and Eadie advices – we do not have the crucial, prior “instructions to counsel”.

As techies would say, without sight of the instructions, such opinions can be instances of “garbage in, garbage out”.

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As it happens, the thrust of my post on Friday is also the view of the former Conservative justice minister David Wolfson:

(And Wolfson is about as un-woke a lawyer as I am a woke legal commentator.)

And it also the view of the professor of public law at the University of Cambridge:

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Such concurrence is always a reassurance.

But.

Even if the cards had fallen differently, and I was saying something in support of (say) Pannick and against (say) Wolfson and Elliott, it would not ultimately matter.

Because it is the content of a legal opinion that matters the most.

Just as if a “distinguished” computer programmer churns out code that does not add up, it is the same for lawyers and legal opinions.

Being distinguished – or experienced or well-regarded – is a factor, as such lawyers and commentators may be accorded more respect.

But respect is not necessarily deference, and it is certainly not subjugation.

And a wise lawyer or commentator knows this, and will take ready account of better and stronger views.

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Without knowing the instructions and other privileged material, little weight can be placed on any formal legal opinion; and even if there is full disclosure of such things, any opinion has little weight in a court or tribunal.

For such opinions are not pleadings or statements of case to be presented to a court, and nor are they statements of evidence or summaries of the arguments before a court.

They are documents addressed solely to the client, on the client’s terms, and can be disclosed to third parties only if it suits the client.

And, as an opinion, it is always open to those to whom it is disclosed to take their own view.

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So, in conclusion: this harsh (now deleted) put-down on Twitter is correct:

(Though the “highly arguably” is adverbly painful to read.)

But.

There is nothing wrong with being a blogger.

For even bloggers can look at kings.

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Murphy’s Lawyers – a reply to Richard J. Murphy’s attack on lawyers for those with power

 25 August 2022

The accountancy professor and campaigner Richard J Murphy launched an attack on certain lawyers on Twitter.

It is important that this attack be understood on its own terms, without misrepresentation and distortion, so I have screen-grabbed the thread below:

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I think Murphy is wrong.

I think – perhaps counter-intuitively – that it is a Good Thing that those who are powerful in society have to have lawyers in place when exercising their power.

The starting point is the simple observation that modern societies – unless there is some happy intervention – tend to be unequal.

This means that in modern societies there tends to be people with more power than others.

These people would tend to have power, regardless of whether they have lawyers or not.

So why do those powerful people need to have lawyers?

It is because of a thing called “the Rule of Law” which means that every exercise of power has to have a lawful basis.

“The Rule of Law” means the powerful cannot do as they wish: instead they have to comply with the law.

That is why powerful people often have lawyers.

Imagine a society where those with power did not need lawyers – that the powerful could exercise their power without worrying about whether they are breaking the law.

That would be an even more brutal and unequal society.

In each of the categories that Murphy posits in his thread, the real significance is that the powerful have to have lawyers – because however mighty those powerful people are, the law is mightier.

What would be more worrying is if the powerful could get their way in each of Murphy’s categories without needing lawyers.

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The points I make above are not original.

The great Marxist historian E. P. Thompson in Whigs and Hunters (perhaps the best British work of practical legal history), and other books, pointed out that the Rule of Law helped those without power in their dealings with those with power.

I happen to have spent time in City law firms, and I have seen how the need for compliance with the law means that those with power have had to do things that they otherwise would not do.

If Murphy is correct, then those with power would simply exercise that power without legal advice – and without any legal constraint.

This would not have the positive effects that Murphy possibly expects.

The applicable laws may well need improving and reform – there may need to be better balances struck between the interests of those with more power and those with less power.

That is the job for the legislature.

But that those with power need to have legal advice is a Good Thing.

For without the powerful having this need to take legal advice, what could go wrong would go wrong – as another Murphy may have once said.

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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.

The comments policy is here.