Whole Life Orders when there is not loss of life

10th February 2023

Although this blog is written generally from a liberal perspective, I do not object – in principle – to whole life orders for exceptional offences.

Other liberals would contend that no prisoner should face the prospect of never being released, to have all hope removed – and that to put a person in this position is in and of itself a cruel and unusual punishment, a form of torture.

But although this blog is deeply sceptical of imprisonment as a routine punishment, there seems to me to be a special category of offenders whose offences mean they should literally have a life sentence.

If whole life sentences, however, are available, one question which arises is whether such sentences should be limited to murderers.

And this question has, again, been prompted by the sentencing of David Carrick.

*

The estimable legal blogger and criminal barrister Matthew Scott has set out why the sentence for Carrick of thirty-two years is correct.

Scott tells us that the reasoning of the judge as set out in her sentencing remarks is “unassailable”.

Given he is an experienced criminal barrister and I am not (and neither will be most of you) then we should defer to his expertise.

But “unassailable” was not the view I formed when I read the sentencing remarks.

Instead my immediate reaction was that the reasoning was not compelling.

In paragraph 32 of the sentencing remarks, the judge says:

“I have assessed very carefully whether given your abuse of position this case should attract a whole life order.”

In paragraph 35 of the remarks, the judge then says:

“The stand out feature is the element of abuse of the status of a police constable but having considered the matter with care I have come to the same conclusion as the prosecution. Of the utmost gravity though this is, the “wholly exceptional circumstances” test is not met.”

What confused me was that in the Wayne Couzens case, the Court of Appeal held (emphasis added):

It provides for its unique and defining feature, which was that Couzens had used his knowledge and status as a police office to perpetrate his appalling crimes against Ms Everard and for the extensive and extreme nature of the other aggravating features which were present: the significant and cold-blooded planning and pre-meditation; the abduction of Ms Everard; the most serious sexual conduct; the mental and physical suffering inflicted on Ms Everard before her death; and the concealment and attempts to destroy Ms Everard’s body.

We agree with the judge that having determined there should be a whole life order, given the misuse of Couzens’ role as a police officer and the serious aggravating features of the offending the guilty pleas did not affect the outcome.

*

It seemed to me that if the Couzens’ role as a police officer meant that what otherwise would be a long term sentence was converted into a whole life order then it would follow that the same would be the case for Carrick.

Against this view, the Crown Prosecution Service in the Carrick case made a point of not seeking a whole life order, and I did not immediately understand this concession, and nor why the judge went along with it.

But now, looking again at the authorities, I can see why Scott is (probably) right and – unsurprisingly – why my instinct was (probably) wrong.

Let me explain.

*

On the face of it, the legislation permitting whole life orders is not limited to murder or any other offence:

S. 321. Life sentence: minimum term order or whole life order

(1) Where a court passes a life sentence, it must make an order under this section.

(2) The order must be a minimum term order unless the court is required to make a whole life order under subsection (3).

(3) The order must be a whole life order if—

(a) [in effect, the offender is over 21], and

(b) the court is of the opinion that, because of the seriousness of— (i) the offence, or (ii) the combination of the offence and one or more offences associated with it, it should not make a minimum term order.

*

This means as long as the conditions in section 3(a) and 3(b) are ticked then there can be a whole life order.

There is no mention of any particular offence.

But in a 2020 case the Lord Chief Justice sitting with the other senior criminal appeals judges considered whether non-murderers would ever meet the threshold for a whole life sentence.

The Court of Appeal said (in a passage which I have broken up for flow):

We endorse the line of authority which does not shut the door to a whole life tariff in a case not involving murder.

The infinite variety of circumstances which give rise to serious offending make it impossible to identify such cases in advance, but we give an indication of the circumstances that might justify such a sentence.

We can envisage circumstances where murders of similar exceptionally high seriousness […] are substantively planned to a point close to execution (conspiracy to murder or attempted murder) but the crime does not occur because the enterprise is foiled or prevented by some fortuitous intervening event.

Examples might include when a bomb planted on a commercial airliner fails to explode or does so without causing sufficient damage to bring it down; similarly, a bomb in a public place does not achieve the wicked aim of those who planned or planted it; or intervention by the authorities prevents an act of mass-murder.

There will be other cases that do not involve a planned homicide of this kind which will merit a discretionary whole life term but, as Lord Phillips observed in Neil Jones, when they occur the need for such a sentence will be clear.

Otherwise, a determinate term of appropriate length will meet the requirements of retribution and punishment.

The offending in the cases of McCann and Sinaga, very serious indeed though it is does not, in our judgment, call for either to receive a whole life tariff.

This is not to minimise the seriousness of their offending but instead to ensure that the most severe sentence in our jurisdiction is reserved, save exceptionally, either for the most serious cases involving loss of life, or when a substantive plan to murder of similar seriousness is interrupted close to fulfilment.

*

So if a whole life order can be imposed when there has not been loss of life – but normally it should be where there was a plan to murder which somehow failed.

If this is the settled and firm view of the court of appeal – and the sheer seniority of the judges on that panel would indicate that should be taken to be the Court of Appeal’s policy, then we can see why the Crown Prosecution Service and the judge in the Carrick case did not seek or consider a whole life order.

Yes, a whole life order can be imposed where there is not loss of life – but not even in a case like Carrick, notwithstanding the misuse of the defendant’s misuse of his police status.

Indeed, it would appear that the misuse of the police status was instrumental in getting Carrick to the starting point of a sixty year sentence which, after the “credit” for his guilty plea, and a reduction to take account of what period a life prisoner would otherwise spend out of prison on licence, ended up with the minimum of thirty-two years to be served.

*

You may think that despite the Court of Appeal setting out the exceptional circumstances where a non-murderer can get a whole life order, one should have been imposed in Carrick’s case.

Or you may think that given the age of Carrick, it is academic whether it is a thirty-two year sentence or a whole life order.

Or you may have another view.

My own normative view is that the Court of Appeal has set too narrowly the sort of cases that warrant a whole life order, and that if misuse of his position as a police officer was enough to convert Couzens’ sentence to a whole life order then the same should have been the case for Carrick.

But practical law is not normative but positive, and you have to take the law as it is, and not what you would like it to be; and the Court of Appeal’s policy on whole life orders meant that neither the Crown Prosecution Service nor the trial judge were in a position to seriously seek or consider a whole life order in this case.

And, for the reasons Scott gives in his post, it is indeed unlikely that the Court of Appeal will shift its position if Carrick’s sentence is referred to it as being “unduly lenient”.

****

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, or if they risk derailing the discussion.

Is it, at last, time to say “good bye” to Thoburn and the idea of “constitutional statutes”?

 9th February 2023

Oh dear old Thoburn, what shall be done with you?

Thoburn, the mainstay of thousands of constitutional law essays and hundreds of learned articles, does yesterday’s Supreme Court decision mean you are now no more?

*

Thoburn is the 2002 “metric martyrs” case which introduced into the then quiet, sedate world of constitutional law the exciting concept of “constitutional statutes”.

Until then all Acts of Parliament were regarded as being equal, none of them any more entrenched – enshrined – than any other.

But in Thoburn the judge said, in effect, that there was a class of super-duper statutes known as “constitutional statutes” and these statutes had super-duper qualities not available to more mundane everyday statutes.

Incredible, if true.

And so Thoburn became the recent constitutional law case any student or informed pundit had to have an opinion about.

But yesterday’s Supreme Court decision on the Northern Irish Protocol may mean the dictum in Thoburn are no longer to be taken seriously.

What will law students and pundits do?

*

To understand what happened with the Thoburn case we have to go back to the Victorian doctrine of the supremacy of parliament.

This doctrine holds that no statute passed by the Crown-in-Parliament can be gainsaid by any court.

But in two case in the early 1930s about the Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Act 1925, the courts were presented with a situation where two statutes contradicted each other.

How should the courts deal with this situation?

The clever idea the courts came up with was “implied repeal” – and so the fiction adopted was that parliament in passing the later legislation knew about the earlier legislation, and so the (presumed) intent of parliament was to repeal the earlier legislation.

But as this repeal was not explicit in the later legislation, it would have to be an implicit repeal.

And this is how the interwar courts managed to disapply a piece of primary legislation, notwithstanding the heady doctrine of the supremacy of parliament.

(Of course, if no Act of parliament can actually be gainsaid by a court, then the courts should have just refused to choose between the two contradictory statutes and return the matter to Parliament to sort out – but the fig-leaf of the “intent” of parliament meant the courts could sort out the legislative mess parliament had created.)

And the legal rule from these case was that the later statute trumps – that is, implicitly repeals – the earlier statute when the two contradict.

*

But in 2002 the court was faced with another seemingly awkward situation.

It was submitted in that case that the Weights and Measures Act 1985 somehow implicitly repealed the earlier European Communities Act 1973.

On the merits of the case, the court found that this was not the position.

But in a dictum – which was not about the point on which the case turned – Lord Justice Laws (and please none of the usual jokes about nominative determinism) went on a judicial frolic and speculated about implied repeal.

Could a later Act of Parliament really implicitly repeal the European Communities Act 1973, which – in turn – was the (then) basis for the laws of the European Union having effect in the United Kingdom?

On the basis of the 1930s cases then this would have to be the position, as the later statute trumps the earlier statute.

But.

As we now know, repeal of the European Communities Act 1973 would be a very complicated and far-reaching thing.

And so Lord Justice Laws posited a new category of statutes which would be immune from any implied repeal.

If there were any contradictions with an earlier “constitutional statute” then it would be the later statute that would be repealed, not the earlier one.

His dictum was as follows (which I have broke out into one-sentence paragraphs):

We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.

The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.

(a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).

The special status of constitutional statutes follows the special status of constitutional rights.

Examples are the [sic] Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.

The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law.

It may be there has never been a statute having such profound effects on so many dimensions of our daily lives.

The ECA is, by force of the common law, a constitutional statute.

*

This was exhilarating, provocative stuff.

And it was utter flapdoodle.

There was no basis for positing such “constitutional statutes” – either then or now.

They were invented just to get the courts out of the potentially tricky situation which the judges’ contrived solution to the problems in the 1930s had got themselves into.

The notion of “implied repeal” was now a reversible switch – and it was to be the judges who decided (and not parliament) whether it would be the earlier or the later legislation that would be “implicitly repealed” by the simple expedient of the judge perhaps dubbing one or the other of the Acts of Parliament a “constitutional statute”.

It was all rather daft, but you will see why it was like catnip to those with an interest in constitutional law.

*

Anyway, the Laws dictum was relied on by the applicants in the recent Allister litigation on the legality of the Northern Irish Protocol, which eventually reached the Supreme Court.

The Supreme Court decision in that case is fascinating and it warrants a post by itself, especially on respect of the developing jurisprudence of the court on devolution.

But the Supreme Court was unimpressed by the Thoburn point.

The court described the submission (again broken up into one-sentence paragraphs):

On the hearing of this appeal, the appellants submitted that the Acts of Union were constitutional statutes so that the rights in the trade limb of article VI of His Majesty’s subjects of Northern Ireland being on the same footing in respect of trade as His Majesty’s subjects of Great Britain, could not be subject to repeal or to subjugation, modification, or suspension absent express or specific words in a later statute.

In support of that submission, the appellants relied on a line of authorities starting with Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151 for the proposition that whilst ordinary statutes may be impliedly repealed constitutional statutes may not.

At para 63 of Thoburn, Laws LJ suggested that the repeal of a constitutional statute or the abrogation of a fundamental right could only be effected by a later statute by:

“express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible.”

The appellants submitted that the Acts of Union are constitutional Acts and that the rights to equal footing as to trade were fundamental rights so that there was no scope for implied repeal and by analogy there was no scope for implied subjugation, modification, or suspension.

*

You will see that the Thoburn point has now been expanded beyond implied repeal and that “constitutional statutes” have various other super-duper legal protections.

The court held (again broken up into one-sentence paragraphs, and with my two comments interposed):

The debate as to whether article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic.

“Academic.”

Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament.

“Even if”

*

Allister is not about implied repeal, so strictly speaking the Laws dictum in Thoburn may be said to not be applicable.

But the notion of “constitutional statutes” is plainly not taken seriously by this unanimous Supreme Court in an important devolution case engaging what Laws would have called many “constitutional statutes” , with a panel consisting of justices from Northern Ireland, Scotland, and Wales, as well as the court’s leading public law justice, Lord Sales.

For the Supreme Court, the content of the Acts of Union have no special entrenched legal status, and they can be amended, and so on, just as any other Act of Parliament.

The question of what would happen with a direct contradiction, as in the early 1930s has been sidestepped.

But the expedient of “constitutional statutes” as suggested by Laws in Thoburn seems to have been put back in its judicial box.

Or has it?

No doubt there will now be thousands more constitutional law essays, and hundreds more learned articles, to tell us whether the dictum in Thoburn is no more.

****

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, or if they risk derailing the discussion.

Zelensky and persuasion

8th February 2023

There are different kinds of political – and legal – advocacy.

One form of advocacy is to make as positive a case as you can for something you think your audience will want you to do anyway.

Here you identify the values and beliefs (and prejudices) of your audience, and tell them what they want to hear.

Another form of advocacy makes no pretence at being positive: you warn of consequences, and thereby manipulate or even coerce your audience into going along with what you want them to do.

But there is another form of advocacy – perhaps the most difficult.

And that is to make your audience feel intellectually – or emotionally – uncomfortable about deciding against you.

This cannot be done by mere warnings, or threats, or by promises and smiles.

It can only be done by making a better case than the one which – but for the advocacy – the audience would normally go for.

*

Today we saw in Westminster Hall an extraordinary exercise in advocacy by the Ukrainian President Volodymyr Zelensky.

The concrete policy goal of the advocacy was simple: the supply of military aircraft.

He needed to shift the policy of the government of the United Kingdom, which is currently not minded to supply military aircraft.

I am no specialist in military strategy – and nor are you likely to be – and so I have no idea whether, in the round such supply would be a wise or a foolish or even a feasible thing.

But the one outcome of today’s speech is that unless there is a compelling reason otherwise, it would be uncomfortable for any politician to disagree with Zelensky’s request.

The mark of a great advocate is not so much to get a person to agree, but to make it harder for a person to disagree.

And it seems to have worked: the government position appears to have shifted.

*

The gift of the signed pilot helmet was also an example of how useful physical artefacts can be in persuasion – especially as it was first presented as a gift, with the gradual reveal of the handwritten message.

This blog has previously told the story of how senior people at the British Library once persuaded Margaret Thatcher of the urgent need for the move of the library to a new purpose-built building.

They did not rely on reports and tables and words.

They just put in front of her a selection of books that were falling apart, including a novel by one of her favourite authors.

And they told her that unless they got the requested investment, that would be what the national collection of books would all end up like.

She stared at the dilapidated books.

They got the investment.

*

Words, words, words can only get you so far.

And Zelensky realised that there is more to persuasion than mere words, or promises, or threats.

Rarely will we see such an outstanding piece of oral and physical rhetoric at Westminster, or indeed elsewhere.

It was a Westminster speech for the ages.

****

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, or if they risk derailing the discussion.

 

Government departmental reorganisations are a form of magical thinking

7th February 2023

Today we were supposed to have had a ministerial reshuffle.

But there was little ministerial shuffling or reshuffling.

Instead we had yet another exercise in creating and renaming government departments.

In reality, not a great deal changes when this happens.  The same civil servants will sit in the same buildings doing much the same things.  The signage on the doors will change, new email addresses will be created, and somebody somewhere will get a lot of money for a rebranding exercise.

The belief seems to be that changing the name of a department – no doubt to something more “eye-catching” – is a thing that by itself means something significant.

Yet it is not even rearranging the deckchairs on the Titanic – it is more like changing the names on the back of the deckchairs.

*

And sometimes, in the longer term, such reorganisations make things worse.

The creation of a “Ministry of Justice” – by combining what had once been the small Lord Chancellor’s Department overseeing the court system and the prisons part of the Home Office created a mid-sized spending department which, when austerity cuts were inflicted, meant that the court system became increasingly underfunded.

The supposed “synergies” from a “holistic” and “beginning-to-end” approach to the justice system never converted from management-speak waffle to hard policy implementation.

*

At the start of Brexit you may recall the sudden creation of two pop-up departments: the Department for Exiting the European Union and the Department for International Trade.

Both must have seemed such really good ideas at the time.

But both were useless.

DExEU soon got dragged back into the Cabinet Office, which had a natural centre of gravity in Whitehall for the relevant negotiations.

The Department for International Trade had nothing to do for a couple of years, as trade deals could not be finalised and executed (and thereby meaningfully negotiated) until the United Kingdom actually left, and then the department spent its time doing what any business department (or foreign office) could have done with the rollover agreements and the few other opportunities.

Both were an exercise in pointlessness – as well as both illustrating the fundamental lack of understanding of the nature of Brexit by the then-government.

And from today the Department for International Trade is no more, even though we are now “free” to strike our own trade deals.

What a waste of time.

*

Some wag once said that, in an office job, meetings are the practical alternative to work.

Similarly, reorganisations are often a manager’s practical alternative to, well, management.

It is perhaps not even worth learning the new departments’ names, and their acronyms, as soon they will change again, with little useful having been achieved in the meantime.

At least the Prime Minister will nod to himself as he thinks he has done something, while all around nothing substantial has changed.

****

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, or if they risk derailing the discussion.

Another weekend, another threat to leave the European Convention of Human Rights

6th February 2023

Here we go, again.

This was a news report in yesterday’s Sunday Times:

The content of the report itself does not quite amount to the “pledge” of the headline – but the content of the report is not without interest:

“The PM has been clear he wants to introduce legislation that meets our international obligations,” a source familiar with Sunak’s thinking said. “This bill will go as far as possible within international law. We are pushing the boundaries of what is legally possible, while staying within the ECHR. And we are confident that when it is tested in the courts, we will win.

“But if this legislation gets onto the statute book and is found to be lawful by our domestic courts, but it is still being held up in Strasbourg, then we know the problem is not our legislation or our courts.

“If that’s the case, then of course he will be willing to reconsider whether being part of the ECHR is in the UK’s long-term interests.”

Senior figures say the prime minister is prepared to deploy the nuclear option before the general election if the European court strikes down his plans. But that would put the government on a collision course with MPs and particularly the House of Lords, and it is highly unlikely it would happen before the election due in 2024.

The Tories would then put withdrawal from the ECHR at the heart of their manifesto, drawing a sharp dividing line between the Conservatives and Labour. The plan is proof, allies say, that Sunak shares the hardline instincts of the Tory right on immigration.

*

What can we make of this?

Perhaps this is just a weekend frolic: a political source contriving something so as to get the weekend press coverage they want at the end of another difficult week.

If so, this would not be first weekend this has happened, and it probably will not be the last.

And in any case, the last part of the news report quoted is probably political bravado: the sound of an anonymous source getting increasingly excited by what they are imparting.

But the first part looks to me as if it may be tied to the circulation of internal government legal advice.

So with my former government lawyer hat on, let us look what could be the situation:

1. The government has a plan to deal with the boats and this plan requires legislation.

2. The government has obtained legal advice on that plan and perhaps even on the wording of the draft legislation.  This advice may be internal advice from the government legal service, and/or it could have been obtained from external specialist counsel.

3. That legal advice is that both the plan and the draft legislation may be compliant with the Human Rights Act 1998 which gives effect to the ECHR in domestic law and, if so, they will be upheld in the domestic courts.

4. However, that legal advice may also include the proviso that the ultimate  arbiter of the ECHR, the European Court of Human Rights in Strasbourg may take a different view – either on a final or on an interim basis.

5. A minister – perhaps the Prime Minister – has decided to proceed with the plan and the legislation on the basis of this legal advice.

If the above analysis is (roughly) correct then the politics of the situation may unfold as follows.

First, if the domestic courts and/or the Strasbourg court hold that the plan and/or the legislation is/are not compliant with the ECHR then it is not the government’s fault but that of the judges and the lawyers.

Second, if the the plan and the legislation is/held to be compliant then the government had won its showdown with the judges and the lawyers – by threatening to leave the ECHR the government has got the courts to cower.

In either scenario, the government will be beyond blame.

The politics of the situation would be, if the above is correct, a win-win for the government.

*

But.

If the government does lose, and the courts hold that the plan and/or the legislation is/are held not to be compliant with the ECHR, what about the threat to leave the ECHR?

This is the bit which is not really thought-through.

As this blog has set out previously, the Good Friday Agreement requires the ECHR to be enforceable directly in the courts of Northern Ireland.

(The Human Rights Act 1998 currently does this for Northern Ireland, as well as for the rest of the United Kingdom – but it does not matter what legislation does it, as long as it is done.)

There is no obvious way that the ECHR can be enforceable directly in the courts of Northern Ireland if the United Kingdom is not a party to the ECHR.

Even attempts to carve out the jurisdiction of Northern Ireland from the rest of the United Kingdom – creating yet another legal(istic) border down the Irish Sea – are unlikely to work.

This is because Article 1 of the ECHR requires its signatories to secure to everyone within their jurisdictions the rights and freedoms set out in the ECHR – and so the United Kingdom cannot be a signatory for some parts of the United Kingdom and not others (emphasis added).

And unless the United Kingdom is the signatory, the ECHR cannot have legal effect so as to be directly enforceable in the courts of Northern Ireland.

The alternative possibility that Ireland still being a signatory to the ECHR could be used as the legal basis for giving direct effect to the ECHR in the courts of Northern Ireland would presumably be a non-starter with the unionist community.

In essence: if the United Kingdom leaves the ECHR then it would seem the United Kingdom will be in breach of express provisions in the Good Friday Agreement.

And all this would be in addition to the reaction of the United States of America to a breach of the Good Friday Agreement – especially as long as Joseph Biden is President.

It is impossible to see how withdrawal could be done without upset.

*

Of course, some would say it is a pity that it is only the Good Friday Agreement that would prevent the United Kingdom government leaving the ECHR.

Surely there are better arguments against leaving than that?

But even if there are better normative points to make on behalf of the ECHR, the Good Friday Agreement would be a formidable structural obstacle to withdrawal.

And changing the Good Friday Agreement would probably need the consent of at least the Northern Irish in a referendum, if not that of the voters of Ireland too.

*

And it appears that current Conservative backbenchers are underwhelmed by this threat, with one correctly using the technical legal term “willy waving”.

As Politico reports:

Enough of the willy waving: Playbook has seen texts exchanged in the “Home Group” of Tory MPs in response to the story over the weekend. Replying to a message from Jonathan Gullis, who had shared it approvingly, Doyle-Price said that “willy waving about leaving the ECHR will do zilch” and declared: “I have been a member of the Conservative Party for 36 years. This group leaves me cold. Upholding the law should never be a matter for debate for a Conservative. Our Home Office is crap. If the government wants to have a phone[y] war over the ECHR instead of sorting itself out it can do it without me.”

Everyone’s a critic: There was more backlash in the group from David Simmonds, who said that “the ECHR is not the issue here. By pretending it is, we are setting ourselves up for a fall as a UK court will take the same line,” and called for reform of the asylum system. Alicia Kearns agreed that “it’s exactly as David sets it out. We cannot tackle asylum claims when we haven’t given ourselves the legal grounding on coming here illegally.” Anna Firth said that while she was happy to be proven wrong, she thought Doyle-Price was “bang on the money” about the ECHR “rabbit hole.”

[…]

On the record: Bob Neill told the Financial Times that it would be “unbelievable” for the U.K. to put itself “in the same company as Russia and Belarus” by leaving the ECHR, while former justice sec Robert Buckland calls it “an undesirable state of affairs.”

 

*

What seems to have happened is that that a political castle was improvised this weekend on the mound of what probably is some fairly unexceptional legal advice about whether the government’s latest plan and draft legislation would survive legal challenge at home and in Strasbourg.

On the basis of that legal advice, politicians and their advisers appear to have rapidly gamed certain political tactics, free from any thought about the structural legal problems, as well as without realising the lack of backbench support.

This is not to say that the current governing party is not capable of putting departure from the ECHR in its manifesto and, if they are again returned, seeking to put that commitment into effect.

(Withdrawal from the ECHR is unlikely before the next general election, as it was not in the 2019 Conservative manifesto, and there would be not enough time to force it through the House of Lords.)

In this age of Brexit and Trump, no such political move can be discounted.

But it would not be easy.

And it would require considerably more thought and planning than the current anonymous briefings indicate has taken place.

****

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, or if they risk derailing the discussion.

 

Substack Essay: The trial of Jane Wenham and the end of English witch trials

5th February 2023

Over at my Substack is this week’s essay on legal history for paying subscribers – these essays are in addition to my free-to-read, topical law and policy commentary.

The essay has also been sent to my Patreon readers, and anyone who has donated to this blog in 2022 can have a free one year subscription – just leave a comment marked private.

The introduction to the essay is below.

*

ESSAY: The trial of Jane Wenham and the end of English witch trials

What a 1712 witchcraft case tells us about how substantial law and process can be used in a highly charged political context

In 1712 Jane Wenham was tried and convicted as a witch, and she was sentenced to be hanged.

Her case is well-known among historians and history students partly because it is usually held to be the last of the English witch trials: the last trial we know to have actually taken place that ended with a conviction where the offence was one of witchcraft.

(The are sometimes claims for a later English trial which seems to exist only in pamphlet form, and there were trials under surviving witchcraft legislation up to the twentieth century but for the deception offence, rather than for witchcraft itself – an offence which was abolished in 1735.)

But the main reason for the Wenham case being well-known among historians and history students is not so much that it was the last trial, but because of what happened with the trial.

This is the case which many point to as showing that the legal system no longer regarded witchcraft as credible, even if non-lawyers continued to do so.

The trial judge Sir John Powell is even quoted as saying – when faced with evidence that someone flew through the air – that flying through the air it was not an offence known to the laws of England.

Nonetheless the jury convicted, and Wenham was sentenced to die.

The combination of the case being the last trial/conviction for witchcraft and the amusing example of judicial scepticism, means that the case is a handy factoid for those want a marker for the end of witchcraft being taken seriously by the legal system, before we come to the Enlightenment of the eighteenth century.

But.

The case is more interesting than being a mere factoid, for looking at the case also shows that educated and lawyerly figures did take witchcraft seriously.

It is also a case that illustrates well what had to be practically done to secure a witchcraft conviction: mere assertion and denunciation was not enough.

The case also indicates that belief in witchcraft was totemic in what we would now call the “culture war” of the time: being sceptical about witchcraft was the “wokery” of the day.

And that fun quote attributed to Powell? It seems to be a later insertion.

This is the story of the trial of Jane Wenham.

For more click here.

****

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, or if they risk derailing the discussion.

Beware of judges employing rhetoric: a note on Lord Denning and his “appalling vista”

3rd February 2023

Yesterday on this blog there was a quick post on the Tate Modern privacy/nuisance case – and I am delighted that I have now been commissioned by Prospect magazine to do an online in-depth analysis of this fascinating case about the clash of public spaces and private rights.

The point of the quick post yesterday was not to offer any considered view on the Tate Modern case (on which I actually have not formed a view) but to point to a conspicuous absence in the judgment.

It was odd that the famous speech of the former Master of the Rolls Lord Denning in the 1977 nuisance case of Miller v Jackson was not mentioned, and nor indeed was Denning himself, given this is one of the most famous speeches in the history of English law.

That speech begins as follows (and I have broken out the sentences):

“In summertime village cricket is the delight of everyone. 

“Nearly every village has its own cricket field where the young men play and the old men watch. 

“In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. 

“They tend it well. 

“The wicket area is well rolled and mown. 

“The outfield is kept short. 

“It has a good club-house for the players and seats for the onlookers. 

“The village team play there on Saturdays and Sundays.

“They belong to a league, competing with the neighbouring villages. 

“On other evenings after work they practice while the light lasts. 

“Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore.

“He has issued an injunction to stop them. 

“He has done it at the instance of a newcomer who is no lover of cricket. 

“This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. 

“The animals did not mind the cricket.

“But now this adjoining field has been turned into a housing estate. 

“The newcomer bought one of the houses on the edge of the cricket ground. 

“No doubt the open space was a selling point. 

“Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. 

“His wife has got so upset about it that they always go out at weekends. 

“They do not go into the garden when cricket is being played. 

“They say that this is intolerable. 

“So they asked the Judge to stop the cricket being played. 

“And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. 

“The cricket ground will be turned to some other use.

“I expect for more houses or a factory. 

“The young men will turn to other things instead of cricket.

“The whole village will be much the poorer. 

“And all this because of a newcomer who has just bought a house there next to the cricket ground.”

*

The leading legal commentator Joshua Rozenberg agreed about this conspicuous absence on Twitter:

*

In the post yesterday I mentioned that I was not a fan of Lord Denning as an appeal judge, though I conceded that one cannot deny his quality as a wordsmith.

(Please note that this adverse view is not about Denning as a person, about whom I have no idea, but about the content and style of his judgments.)

One day I may write a fuller account of this adverse view, but in essence I hold this view for three reasons.

First, it seems to me that Denning’s judgments are often triumphs of form – indeed of rhetoric – over legal substance.

(Indeed, when I once read many of Denning’s judgments in succession, it felt as if he was even sometimes the prisoner, and not the master, of his style of giving judgments.)

Second, his freestyle use of law and equity created a great deal of needless uncertainty in areas of law where certainty is important, especially at appellate level.

(And the usual argument that this was for achieving justice in individual cases really goes to his deftness as a legal rhetorician: for it is difficult when reading his judgments not to sympathise with the party Denning wanted to win – “of course” they should win.)

And third, it is because his rhetorically impressive judgments often cloaked a very illiberal approach to the law and the rights of individuals.

For example there is his notorious 1980 speech in the civil claim brought by the then-imprisoned (and later rightly exonerated) Birmingham Six.

Here I will quote from that speech more fully than usual, so that you can see hos slow rhetorical build-up (and I have again broken out the sentences):

“In this case at the “trial within a trial” there was an issue whether the police had been guilty of violence or threats towards the six men so that their confessions were not made voluntarily.

“The judge on the issue made a clear finding against the six men after a trial of eight days in which the six men had full and fair opportunity of being heard – and were in fact heard – and were represented by leading counsel.

“At the trial the same evidence about violence and threats was given all over again before the jury.

“If the jury had acquitted the six men, it would not be fair or just to hold that the finding of Bridge J. was binding on the six men in subsequent proceedings.

“But seeing that the jury convicted the six men, it is reasonable to suppose that they took the same view as Bridge J.

“In any case the issues are such that it would not be fair or just to allow the decision to be reopened by the six men.

“Just consider the course of events if this action were to proceed to trial. It will not be tried for 18 months or two years.

“It will take weeks and weeks.

“The evidence about violence and threats will be given all over again, but this time six or seven years after the event, instead of one year.

“If the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose.

“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous.

“That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968 .

“This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.

“They should be struck out either on the ground that the six men are estopped from challenging the decision of Bridge J. or alternatively that it is an abuse of the process of the court.

“Whichever it is, the actions should be stopped.”

*

Denning’s exercise in legal rhetoric is strikingly similar in style to his famous introduction to the 1977 case of Miller v Jackson.

But instead of the readers clapping and cheering, as most will do with the Miller v Jackson introduction, the only decent response to this Birmingham Six passage is disgust.

And this is why one should be wary of rhetoric in legal judgments – and indeed it is why we should be at our most vigilant when we find ourselves nodding-along with a rousing passage in any judgment – whether by Lord Denning or by any other judge.

Of course: judgments should be plain and succinct and comprehensible to non-lawyers.

But judges should leave the tools of persuasion to the advocates.

For if the judge has got the law right and the facts right, there is no need for the judge to also employ rhetorical devices so as to get you to nod-along with what they have decided.

****

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, or if they risk derailing the discussion.

The Tate Modern viewing platform case – why did they not mention Denning?

2nd February 2023

In summertime the public viewing platform at Tate Modern is the delight of everyone.

Nearly every person can enjoy panoramic views of London, including into the rooms of neighbouring apartments, for which well-off people have paid – and they do not want other people to watch.

The platform will probably now be turned to some other use.

The whole of London will be much the poorer.

And all this because of those who have bought flats there next to the Tate Modern.

*

Yes, this brief post is about the Supreme Court judgment in the “nuisance” case about whether local residents have a claim in respect of Tate Modern’s use of the top floor of its Blavatnik Building as a viewing platform.

A detailed look at this fascinating case is a subject for another post.

But, in the meantime, it is remarkable that one person who was not named in the judgment, the former Master of the Rolls Lord Denning.

I am not a fan of Lord Denning as an appeals judge, but nobody can deny his skill as a wordsmith.

And one of his most famous judgments was in the minority in the 1977 case of Miller v Jackson.

It is a case known to every student of English law.

This was a case about a village cricket pitch which, the plaintiffs contended, constituted a nuisance to the adjacent properties.

The case of Miller v Jackson is mentioned a few times in the Supreme Court judgment, but Denning’s famous minority speech is not alluded to – and he is not named whatsoever.

This can only be a deliberate omission, given the sheer fame of that Denning speech.

We should be impressed by the self-restraint of the Supreme Court judges not to mimic or even refer to the famous speech by Denning.

A temptation that cannot be resisted, however, by far lesser legal minds.

****

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, or if they risk derailing the discussion.

Due process and ministerial matters

1st February 2023

The working title of this post was something like “Boris Johnson, Nadhim Zahawi, and the creeping judicialisation of ministerial matters” – but that was perhaps too provocative and over-stated, even though it does have an element of truth to it.

One starting point here is that ministers of the crown are appointed, at least in constitutional theory, by the monarch, on the advice of the prime minister.

Another starting point is that parliament is the master of its own procedures, and what happens in parliament cannot be gainsaid by any court.

Both of these things – the hiring and firing of ministers and the affairs of parliament – are firmly in the realm of politics, rather than part of the province of law.

And those commentators and politicians who are hard against things like “judicial activism” and “unelected judges” are usually the most vigilant about judicial intrusions into the realm of politics.

There is a “political constitution” we are told, and it is not the business of judges and lawyers to get involved in what are matters of politics.

*

But.

In the recent political matters of, first, Boris Johnson and the privileges committee and then second, the sacking of Nadhim Zahawi we are hearing phrases such as “natural justice” and “due process”.

The contention is that neither parliament nor the prime minister should have unfettered discretion.

There are things parliament and the prime minister cannot do, it is averred, because of the procedural rights of the politician involved.

This blog covered, you may remember, the “legal” advice commissioned by Johnson and his criminal lawyers to the effect that parliament was acting with conspicuous unfairness in its dealings with Johnson, even though it would never be a matter for any court.

This advice, we were told at the time, was “absolutely devastating” but, in fact, it absolutely missed the point.

This weekend just gone saw a similar complaint from supporters of Zahawi:

One response to these protestations is simply to scoff, especially as both Johnson and Zahawi are the sort of politicians who otherwise would criticise lawyers for “getting people off on technicalities”.

(And many such “technicalities” are procedural points, as opposed to substantive points on the merits.)

Like the proverbial “foxhole atheists”, it can be remarked that politicians who otherwise would disdain, if not despise, clever lawyerly tricks seem to have a change of heart about procedural fairness when their own rights are at issue.

*

But scoffing alone would be wrong: for it is actually heartening to see due process and procedural fairness being given emphasis in political matters.

Of course, taking due process and procedural fairness seriously does not (necessarily) mean political matters being dragged into the courts.

The prerogatives and privileges of both the crown and of parliament mean that such matters are not justiciable.

And there is the danger of due process being misused.

In particular, there is the problem of prime ministers using inquiries and investigations as the means of not taking decisions which they are supposed to make themselves under our constitutional arrangements.

And there is the problem that, like with the (infamous) wait for the Sue Gray report, inquiries and investigations can be used as an excuse to avoid and evade proper parliamentary scrutiny and political accountability.

*

Taking due process and procedural fairness (more) seriously is a welcome development, given the alternative of arbitrary and capricious decision-making.

Yet taking such things seriously means it should not matter whether doing so is politically convenient or not.

Fairness should always a basic value, and not a means to an end.

And so the best way politicians could show us that they do take due process and procedural fairness seriously is not when it is in their own cause, but in the cause of those far less powerful in society whose rights are undermined or disregarded.

For if politicians cared as much about the procedural rights of the less powerful as they do about their own due process rights, then that would show their protests were not just cynical, self-serving expediencies.

No doubt, however, such politicians would shrug off such uneven-handed inconsistency as, well, just a technicality.

****

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, or if they risk derailing the discussion.

Tax law should be as boring as constitutional law

31st January 2023

This is a very quick post, while I am writing something more substantial on natural justice and ministerial sackings (which I have not finished in time to post today, sorry).

Tax law, like constitutional law, should be dull.

And so that tax law is currently interesting is a Bad Sign.

Tax policy – as opposed to tax law – should be interesting, but once the policy has been determined, the practical implementation of that policy should not be remarkable.

The current emphasis in political debate about ministerial compliance with tax law will not end well.

****

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, or if they risk derailing the discussion.