Sir Cyril Smith ~ Corroboration of evidence

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Revelations relating to the activities of the late Sir Cyril Smith have been in the media - BBC Sir Cyril Smith: Former MP sexually abused boys, police say 27th November 2012.   Sir Cyril's family are deeply saddened by these allegations - Telegraph 28th November 2012  - where it is reported that Smith’s family laments the fact that the claims had been resurrected "so long after Sir Cyril's death and at a time when he is no longer able to defend himself".

Evidence now made public indicates that a file compiled by Lancashire Constabulary in 1970 contained allegations made by eight men that they had been subjected to indecent assaults by Sir Cyril when they were teenagers.  The file was considered by the Director of Public Prosecutions (DPP) Sir Norman Skelhorn KBE QC who advised that no charges should be brought against Cyril Smith.  (Skelhorn was Director of Public Prosecutions from 1964 to 1977.  The Crown Prosecution Service was not created until 1986 - Prosecution of Offences Act 1985). 

The reasons given by Skelhorn for advising against prosecution are of some legal interest.  The reasons were in a letter from Skelhorn to the Chief Constable of Lancashire (19th March 1970).    Skelhorn stated that the allegations were "without corroboration."


"Corroboration" was, at the time, a very significant element in the law of evidence applicable to criminal cases.  A trial judge was required to warn juries of convicting on the uncorroborated evidence of a complainant in sexual cases.  The only exception to this was a sexual case where the identity of the alleged assailant was in issue but not the commission of the offence itself - R v Chance [1988] 3 All ER 225, CA.  What was referred to as a FULL warning had to be given and failure to do so could render a conviction unsafe.  The jury had to be told:

1. That it was dangerous to convict on the uncorroborated evidence of the witness but that if they (the jury) were satisfied of the truth of such evidence they might nevertheless convict;

2. The technical meaning of corroboration had to be explained;

3.  The jury had to be told which evidence was (and which was not) capable of amounting in law to corroboration;

4.  It also had to be explained to the jury that, as the tribunal of fact, they had to decide whether the available evidence did in fact constitute corroboration.

These requirements were replaced by the Criminal Justice and Public Order Act 1994 s.32 so as to remove the obligatory warning but the trial judge retains a discretion to give some form of warning whenever he considers it necessary to do so.  The leading case on section 32 is R v Makanjuola [1995] 3 All ER 730, CA - judgment of Lord Taylor of Gosforth CJ.

Sir Norman Skelhorn's opinion would, of course, have been based on the law as it stood in 1970 and the need for formal corroboration of the complainant's evidence amounted to a formidable hurdle in many cases of this type.

See the Crown prosecution Service statement (27/11/12) relating to Sir Cyril Smith

Who is to guard the guardians - Leveson report - Immediate reaction

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Lord Justice Leveson has published his report following the end of the first part of his Inquiry at which some 337 witnesses gave evidence and 300 other statements were taken into account.  The report is available via the Leveson Inquiry website.  A video of Lord Justice Leveson launching his report is also available - see The Guardian 29th November.

"The goal must be a genuinely independent and effective self regulatory system. I have therefore set out, and recommend a model for independent self regulation that I am confident would protect both the freedom of the press and freedom of speech along with the rights and interests of individuals; it should therefore command public
confidence."

"An independent regulatory body should be established, with the dual roles of promoting high standards of journalism and protecting the rights of individuals. That body should set standards, both through a code and in relation to governance and compliance. The body should: hear individual complaints against its members about breach of its standards and order appropriate redress while encouraging individual newspapers to embrace a more rigorous process for dealing with complaints internally; take an active role in promoting high standards, including having the power to investigate serious or systemic breaches and impose appropriate sanctions; and provide a fair, quick and inexpensive arbitration service to deal with any civil law claims based upon its members’ publications."



Leveson LJ began the launch of his report by saying that a free press operating in the public interest was a vital safeguard in a democracy.  There were countless examples of excellent journalism, investigations and campaigns.  Also, the press informs, educates and entertains  and can be irreverent, unruly and opinionated.  Nevertheless, it was uniquely powerful and had responsibilities.  Unfortunately - and too often - those responsibilities had been ignored and this had damaged the public interest.

Not one witness had suggested that either government or politicians should be involved in press regulation.  However, the press was "marking its own homework."  (A phrase which Leveson appears to have borrowed from the actor and witness at the inquiry - Hugh Grant - BBC 28th November).  A new regulatory body was needed to replace the Press Complaints Commission.  This body to be independent of both the newspaper industry and politicians.  The new body could be appointed by a fair and open appointments process and no serving editor or politician would be eligible for selection.   (There are plenty of no longer serving media people and politicians!).  Leveson did not see it as his task to go further and try to dictate how such a body would work.

Leveson said that he was not proposing legislation to establish a body to regulate the press - it would be for the press to organise that.  Legislation would recognise and underpin a new independent self regulatory system.  The legislation would bring into law a legal duty on government to protect press freedom and to establish the independence of the regulatory body.

Leveson saw no evidence to suggest that corruption was widespread in relation top Police / Media relations.  Further, he accepted that, at times, the relationship between elements in the media and politicians had been too close.  (Little doubt about that - politicians attending Murdoch parties etc)!  There was a perception that lobbying had come to influence policy and this undermined public confidence.  Whilst the press was entitled to lobby in its own interests, politicians were responsible for ensuring that their decisions were clearly seen to be in the public interest and he recommended that certain steps be considered. 

Ministers were, in Leveson's view, the right people to make decisions regarding media ownership.  The Competition authorities should keep plurality under review and have appropriate remedies available to them to maintain plurality including protecting plurality where it is threatened by organic change in the market.

This was the 7th time in under 70 years that media issues had been considered.  There was no sense in contemplating an 8th time.  Leveson said that his report should speak for itself and therefore he did not intend to answer questions or give interviews about it and no further statements would be issued on his behalf.  The ball was now in the politician's court and it was they who had to decide who guards the guardians.

It is very doubtful that Leveson LJ could have recommended less and would, I believe, have been unwise to recommend more.  Much will lie in the detail and draft legislation will be awaited with great interest and will have to be very carefully vetted to ensure that it does what Leveson wanted and no more.  The necessary legislation to implement Leveson's various points is, in practice, likely to be quite complex.  For a post disagreeing with this, please see Informm's Blog - Chris Pounder - Leveson principles underpinned in 133 words of legislation and also see, for situation in Ireland,  #Cameron #Leveson: LOL - cearta.ie blog).  A legal duty on politicians to protect press freedom was put forward and a great deal will depend on how that is worded.  Such broad duties tend to be enforceable (if at all) only in the political arena.  For example, the Constitutional Reform Act 2005 contains a clearly stated duty on Ministers to uphold the rule of law (including international law).  Is this being upheld when the Lord Chancellor actually puts a prisoner voting option to Parliament which will perpetuate the present blanket ban condemned by the European Court of Human Rights?

Reaction of the Prime Minister:

The Telegraph 29th November - Statement in Parliament by David Cameron -  The Prime Minister welcomed "the Leveson principles" but doubted whether legislation was needed to actually implement them.  That would be to cross the Rubicon and imbed elements of press regulation in law.

Over the next few days, links to reactions to the report will be added below.

A) Broadly supportive of Leveson's proposals

The Justice Gap 29th November - A fair and balanced report opposed only by those who seek to mislead

Media Standards Trust - Lord Justice Leveson has put forward workable and proportionate proposals for reform of press self-regulation.

Ben Emmerson QC - The Guardian 3rd December -  Leveson isn't a threat to human rights - not adopting his proposals would be

B) Broadly against Leveson's proposals

Index on Censorship - 29th November  - "We consider that the statutory-voluntary approach to independent press regulation would undermine press freedom in the UK. However, we support the proposal for cheap, effective arbitration, which would help victims get swift redress to their complaints."

Free Speech Network -  A free press cannot be free if it is dependent on and accountable to a regulatory body recognized by the state

Telegraph 30th November - Why Leveson's proposals are nothing like the First Amendment- Rupert Myers wrote: At the centre of Lord Justice Leveson’s report is the idea that legislation should enshrine the protection of the press. Like many people, I tend to prefer a jurisprudential approach which takes as the starting point the presumption of absolute liberty, restricting via laws only a discrete set of acts, rather than a philosophy which tries to claim that the law and the state gives us our rights as packages. This is why the notion that a law could "enshrine, for the first time, a legal duty on the government to protect the freedom of the press" should not be considered necessarily to be any real protection.


BBC 29th November - Watchdog needed to curb press 'havoc'

30th November - CharonQC - The Leveson report - podcast with David Allen Green and Carl Gardner

Government prepares draft bill - The Guardian 30th November

Informm's blog - Leveson: one last chance for press self-regulation? A summary of the proposals - Edward Craven - a good overview of the proposed regulation mechanism

Several other articles on the Informm's blog

D) Specific to data protection

Leveson proposes changes to data protection law - Out-Law.com 29th November

Leveson Inquiry Report: spotlight on proposed data protection reforms  - Panopticon blog 29th November

Leveson, Press and Data Protection: the Rubicon has already been crossed - Inforrm's blog 29th November

Whole life terms for murder - Vinter and others v UK

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Today, the Grand Chamber of the European Court of Human Rights heard argument in Vinter and others v United Kingdom - see video of the hearing.   The case concerns three applicants who are serving sentences of life imprisonment for murder: Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore.  The three argue that their imprisonment without hope of release is contrary to Article 3 of the Convention - (No one shall be subjected to torture or to inhuman or degrading treatment or punishment).

Submissions were made for the British government by Mr David Perry QC and, for the applicants by Mr Pete Weatherby QC.

The British government submitted that whole life terms - for murders of the most extreme gravity - do not breach Article 3.  This position was supported on 21st November by the Court of Appeal (Criminal Division) sitting as 5 judges with the Lord Chief Justice presiding - David Oakes and others v R [2012] EWCA Crim 2435 - (post at Law and Lawyers 22nd November Two BIG stories).



The applicants fully recognised that they may never actually be released but they submitted that Article 3 was breached because whole life terms could never be reviewed.  If there was a review mechanism then Article 3 would not not be breached.  The key question was whether the sentence is reducible and not whether it is in fact reduced in the particular case.

The government emphasised that the Criminal Justice Act 2003 contains a scheme by which the judiciary (and not the executive) determine the term to be served and the scheme enables all factors whether aggravating or mitigating to be considered by the judge.  A whole life term was imposed for punishment purposes in only the most serious cases.  The executive does not have any role in the setting of the term to be served.  The seriousness of the offence did not change over time and subsequent events could not make continued detention, imposed for purposes of punishment and deterrence, unjustifiable.  The government also argued that a review mechanism in such cases would hold out a false hope of release and article 3 should not be used to create such expectations.  The government did however place reliance on section 30 of the Crime Sentences Act 1997 which permits the Secretary of State to release a prisoner on compassionate grounds.  This section had to be applied bearing in mind Article 3 so that if detention were to become "inhuman or degrading" then the Minister would be obliged to exercise his power under section 30.  A further point was that the European Court had held that extradition to countries such as the USA was acceptable where the individual might have to eventually serve life imprisonment without possibility of parole and it would therefore be illogical to rule that an individual could not serve such a sentence in the UK.

The applicants argued that the warehousing of a human being for life was contrary to European penal policy in that, over time, the balance between justification for the imprisonment and considerations justifying release can change.   Whilst release might be a remote prospect, it should never be ruled out entirely since it crushed human dignity and made life devoid of meaning and hope.  Could it be maintained that a person could never atone for the crime?   Mr Weatherby cited a speech by Winston Churchill (20th July 1910):

A calm and dispassionate recognition of the rights of the accused against the state, and even of convicted criminals against the state, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes, and an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.


Prior to 2003, the executive was involved in setting minimum terms and there was a process of reviewing sentences after 25 years.  This stopped after the Criminal Justice Act 2003 transferred to the judiciary the duty of setting terms to be served.  Even sentences imposed by the International Criminal Court for matters such as war crimes were reviewable after 25 years.  In Jeremy Bamber's case, promises of review had actually been made but they were not carried out as a result of this change.  In SCOTLAND - since the Convention Rights Compliance (Scotland) Act 2001 a minimum term had to be set in ALL cases.  In Northern Ireland, the Secretary of State conducted reviews.  This is not the first time that marked differences between the constituent parts of the UK have been noted.  A previous example is the Marper judgment (para 109) relating to the DNA database.  A final point made by the applicants was that the English courts had misinterpreted the European Court's judgment in Kafkaris v Cyprus which, the applicants submitted, supported the view that irreducible life sentences breached Article 3 - (in particular note para. 100 onward).

If the judgment goes in favour of the applicants (by ruling that Article 3 is breached unless there are reviews) there will be outrage in much of the British media and with some MPs.  Currently, there is a dislike of the European Convention, the European "Mickey-mouse" Court and perhaps even the very idea of human rights enforceable at law.  Calls to withdraw from the convention are far from uncommon - e.g. Nick Herbert MP - "Accommodation with Strasbourg is a pipe dream."   The court will rule on the point as to whether there should be a review in relation to whole life terms.  To introduce reviews would require a change to English law by either re-introducing such a review after a stipulated period or by requiring a review in all cases as is the position in Scotland.   The reviews could be conducted by the Parole Board.  Even if reviews of whole life terms were introduced, one suspects that few would secure release but it would be a possibility.  There are strong points on both sides but I suspect that the applicant's case regarding reviews may find favour at Strasbourg.




The Justice Gap - Lucy Mair - Death by Incarceration - looks at the position after the January 2012 judgment of the Fourth Section in Vinter and others v UK where the section held (4 to 3) that whole life sentences did not breach Article 3.

Cruel Britannia ~ serious material to consider

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Suspicions about recent UK involvement in torture or (other cruel, inhuman or degrading treatment ) committed abroad have never been properly laid to rest and they are unlikely to be resolved if the Justice and Security Bill reaches the statute book. Some of the available material is disturbing.

Fourth Annual Baha Mousa Lecture:

On 19th October, my companion blog published - Fourth Baha Mousa Memorial Lecture - Iraq - Unlawful treatment of detainees 'institutional'.  That post covered a lecture delivered by a former Senior Legal Adviser to the British Army in Iraq - Lt. Col. Nicholas Mercer.  The lecture is reported at The Guardian 19th October 2012 where Colonel Mercer said the UK's complicity in the unlawful treatment of detainees was "institutional" and must be wiped out to prevent future abuses by British troops.  Colonel Mercer described how he was gagged by the Ministry of Defence after he criticised senior British commanders and MoD officials in the case of Baha Mousa, who died while in the custody of British troops.  Mercer said his attempts to set up independent judicial monitoring of the treatment of detainees were blocked by the MoD. Britain's obligations under domestic and international law were routinely ignored, he added.




The UN Special Rapporteur on Torture:

Here, Juan Méndez, UN Special Rapporteur on Torture, discussed the global efforts to eradicate torture.  Please see Chatham House - Enforcing the absolute prohibition against torture where the Special rapporteur spoke of efforts on a global scale to eradicate torture.

Other posts etc:

Law and Lawyers posts -

13th February 2010 - Has the UK been complicit in either the torture or mistreatment of prisoners?
9th September 2011 - The 10th Anniversary of 9/11
23rd November 2011 - The unfolding aftermath of the Iraq War

Female bishops - is the Church of England for turning?

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The Church of England is the "established" church in England.  It has the right to have 26 Bishops (including the two Archbishops) in Parliament - they sit in the House of Lords.  All Bishops are male and females may not be appointed.  An attempt in the Church of England's General Synod to reverse this was defeated on 20th November - see C of E statement.  The Synod is made up of the "Convocations of Canterbury and York", a house of bishops, a house of clergy to which is added a house of laity.  To change the position, a majority of two-thirds was required in each House.  It was the Laity which, by just 6 votes, rejected the proposal to have female Bishops.

The rejection of female bishops has upset many in the church and also, it appears, in Parliament - The Guardian 21st November.  Also, whilst the church has exemptions under equality law, the move is seen by many as perpetuating unacceptable discrimination.  An e-petition has been raised to try to get a debate in Parliament on the issue.



If things are left where they are, a fresh attempt to alter the law cannot be made in the Synod until 2015.  However, the church has a procedure which might be used to introduce new draft legislation - C of E statement.  An alternative is that Parliament itself acts to alter the law.  There is a constitutional convention that Parliament does not alter the law of the church unless the church agrees.  However, it is a convention and not strict law and so Parliament could act.  If it were to do so, much wider issues such  as disestablishing the church would undoubtedly arise.

The C of E has an interesting website with a considerable amount of legal information as to how church "measures" are enacted.  They are a form of legislation similar to Acts of Parliament and they have to be approved by Parliament and must receive Royal Assent.  HM the Queen is Supreme Governor of the Church of England.  This role is historical - dating back to the reign of Henry VIII and the Act of Supremacy 1534.

It will be particularly interesting to see how this situation develops.


Reflections on Church and State - Law and Lawyers 28th April 2011

Failure to vote in women bishops risks 'constitutional crisis' in Church - Telegraph 26th November.

National Secular Society - Church of England's establishment is well past its sell-by date - 21st November.

National Secular Society - Church and State need to be set free - 22nd November

BBC Question Time (Abu Qatada) and SIAC

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On BBC Question Time 22nd November 2012 an audience member asked a question - "Should we simply put Abu Qatada (AQ) on a plane to Jordan?" - see BBC QT at time 8mins 25 secs.  The responses to this question raise some serious concerns about the stance of British politicians regarding the rule of law and the future protection of human rights.

The clear inference in the question is that, irrespective of the decision of the Special Immigration Appeals Commission (SIAC) on 12th November 2012, AQ should simply be deported anyway.   See also Law and Lawyers - Mohammed Othman (Abu Qatada).   In fairness, I am not sure that the man asking the question realised that it was a British court which, in the end, decided that the assurances provided by Jordan were still insufficient to ensure that AQ would receive a fair trial in Jordan.  The key point was that Jordanian criminal law did not necessarily prevent evidence being used by the prosecution at AQ's trial given that it might have been obtained by torture some years ago.

The Question Time Panel was David Dimbleby (Chair), Chris Grayling (Secretary of State for Justice and Lord Chancellor), Harriet Harman (a one-time Solicitor General), Tessa Mount (Liberal Democrats), Nigel Farage (UKIP) and Moray MacLennan (CEO of Saatchi).



Although Grayling and Harman both defended the right of British judges to make independent decisions, they made it perfectly clear that they disliked the outcome.  Grayling confirmed that the government will appeal SIAC's decision.  Appeals are available to the Court of Appeal but on points of law only.  Questions of foreign law are regarded, by English courts, as questions of fact.  Grayling also said that he is seeking a new human rights framework since, in his view, the present framework has moved a long way from what was intended originally.  He hoped that such a new framework could be put to the British people at the next election.  It is true that things have changed since the 1950s when the Convention was first drawn up.  Above all, the Convention has come to be viewed as a living document to be interpreted in the light of prevailing circumstances.  If the convention were not viewed in this way, many beneficial and civilising reforms might not have come about.  (See Additional materials below).

Harman wished to see a return to some system of detention so that individuals such as AQ could be detained even if they cannot be either tried here or deported.  Such as system existed under Part IV of the Anti-Terrorism Crime and Security Act 2001 but the House of Lords ruled in A and others v Home Secretary [2004] UKHL 56 that section 23 of the Act was incompatible with Articles 5 and 14 of the Convention since it was disproportionate and permitted detention of suspected international terrorists in a way which discriminated on ground of nationality of immigration status.  Subsequently, the law was reformed by the Prevention of Terrorism Act 2005.

Panel member Moray MacLennan expressed unease at the fact that AQ has never been charged with any offence in England.  No clear reason for this was forthcoming though the answer may lie in whether, at the relevant time, any activities of AQ were caught by English terrorism law - a net which has widened considerably over the years.  Of course, the British public are expected to accept that AQ is dangerous because the government says so and SIAC agrees with them.  We, the public, are not allowed to know the full evidence against him.  Such is the nature of closed proceedings which, under the Justice and Security Bill, the government wish to see extended to civil cases when "national security" is raised.

A fuller discussion of the Question Time debate may be read at UK Constitutional Law Group blog where Professor Gavin Phillipson (University of Durham) looks at Debating the Abu Qatada affair.  Professor Phillipson begins by saying - "I found the debate illuminating and alarming in equal measure; it made me reflect seriously on how precarious Britain’s interwoven system of international and domestic protection for human rights may actually be these days."  The full article is an essential read.

A glance at SIAC:

At the heart of decision-making in cases such as Abu Qatada is the Special Immigration Appeals Commission or SIAC which exists by virtue of the Special Immigration Appeals Commission Act 1997.  The "Commission" is a "court" - a superior court of record.

SIAC has been criticised because of its secrecy but judgments are published (see Bailii) albeit usually anonymised.  There are also "closed" judgments which are not published.   In the latest Abu Qatada case there are published reasons and a closed judgment.

The Lord Chancellor (Mr Grayling) has considerable powers in relation to SIAC.  He determines the number of SIAC members and they hold and vacate office in accordance with the terms of their appointment and are, on ceasing to hold office, eligible for re-appointment.  A member of the Commission may resign his office at any time by notice in writing to the Lord Chancellor.  Hearings are usually chaired by a High Court Judge who sits with two other panel members.

A Ministry of Justice advertisement for SIAC members in 2010 stated - "If you have experience at a senior level handling Top Secret material, perhaps in government service or in the field of Security, your ability to scrutinise sensitive material will help ensure SIAC decisions are balanced, informed and fair."

There are therefore some non-legally qualified members.  They are appointed by the Lord Chancellor/Secretary of State for Justice on terms which he sets.  Since the lay members are there as part of the decision-making body as opposed to being merely advisory, it may be that they do not truly have the judicial independence one might expect.

Interestingly, it seems that membership of SIAC has become something of a niche for retired diplomats etc.  Sir Brian Barder KCMG  - himself a former diplomat and member of SIAC - resigned from SIAC in January 2004.  His article of 18th March 2004 remains of interest.  In this, Barder comments about the membership of SIAC and, in particular, the role of the lay members.  He wrote:

"It is fair to ask, however, whether intelligence experts ought to be full members of the commission, rather than act as advisers to a panel of three fully-fledged judges. Former senior civil servants and diplomats have necessarily been closely identified for most of their working lives with the Whitehall and Westminster establishment, and may be more reluctant than judges to question the wisdom of the intelligence community, ministers and their officials."

Barder resigned from SIAC when he formed the opinion that the decisions of the Court of Appeal and House of Lords in Rehman [2001] UKHL 47 had effectively buckled SIAC into a legal straitjacket making it unable to act "as an effective champion against error or abuse by the executive."

Additional material:

Justice: Special Immigration Appeals Commission Tribunal Guidance

the following will be of interest to legal professionals and to students keen to obtain a good degree ...

See "The SIAC, Deportation and European Law" - Simon Crowther, Cambridge Student Law Review 2010 Volume 6 No. 1 at page 226. 

On the "living instrument" view of the European Convention, see The ECHR as a Living Instrument: Its meaning and legitimacy - George Letsas (University College London) and also the speech by Lady Hale in 2011 - Beanstalk of Living Instrument?  How tall can the ECHR grow?

Then there is The European Court of Human Rights in Action - Luzius Wildhaber and, in 2011, What are the limits to the evolutive interpretation of the Convention? was published by the court.  

Luzius Wildhaber was President of the European Court of Human Rights.

Prisoner voting

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By today, the government was required to bring forward legislative proposals relating to prisoner voting.  A DRAFT Bill has been issued - Voting Eligibility (Prisoners) Draft Bill

The Bill presents three options for reform:

Option 1: ban for prisoners sentenced to 4 years or more

Option 2: ban for prisoners sentenced to more than 6 months

Option 3: ban for all prisoners - (the draft bill states - "re-enacts the current general ban on prisoner voting, but with a few minor changes")

Quite clearly, Option 3 cannot be compliant with the obligation placed on the UK by decisions of the European Court of Human Rights since the court decided that it was the blanket ban which was non-compliant with Protocol 1 to the Convention.



The executive clearly does not wish to alter the present law and this draft bill may be viewed as a cynical attempt at being able to claim that the government is respecting the convention whilst simultaneously ducking the issue.  The draft bill will undergo "pre-legislative scrutiny" thereby delaying reform for as long a period as possible.  For how long?  Who knows - perhaps beyond the present Parliament.

It seems somewhat odd that when the Ministry of Justice is talking seriously about a revolution in rehabilitation and restorative justice it is refusing to properly get to grips with the prisoner voting issue.  Many argue that deprivation of voting rights works against rehabilitation.

An important point should be borne in mind.  The European Court judgment in Greens and MT v UK also requires the UK to actually alter the law within a period to be determined by the Council of Europe's Committee of Ministers.

How judgments of the court are enforced was looked at in  Prisoner Votes ~ The Battle lines are drawn - 25th October 2012

Recommended reading:

UK Human Rights blog - Adam Wagner - "A £1000 prisoner vote signing on bonus"

Parliament Briefing Paper 22nd November 2012

Two BIG stories

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The Court of Appeal (Criminal Division) sat with 5 judges with the Lord Chief Justice presiding and considered whole life tariffs for those convicted of murder.

David Oakes and others v R [2012] EWCA Crim 2435 - Lord Judge LCJ, Hallett, Hughes, Leveson and Rafferty LJJ

This is an important decision not only because of the immediate subject matter but also because the judgment appears just in advance of the European Court of Human Rights decision in the Jeremy Bamber case.  This is the strongest Court of Appeal constitution that I am able to recall and it sends out a very strong message that the principle of a judge being able to impose a whole life tariff is lawful in relation to exceptionally serious murders.

Interestingly, there is a very strong possibility that one of those who sat with Lord Judge will become the next Lord Chief Justice since Lord Judge has now announced his retirement in September 2013.

The other big story is
the House of Lords Report Stage of the government's Justice and Security Bill which was considered in a number of other posts on this blog.  Rarely has any bill received such widespread condemnation as this.  The government suffered a number of defeats in the Lords and a good report on the debate is that by Owen Bowcott - The Guardian 21st November - Secret Court plans savaged by House of Lords.  Also Telegraph 21st November - Secret courts suffer humiliating defeat in House of Lords.

The effect of all this is that the scope of the bill is narrowed but the principle that there may be closed hearings in civil cases is by no means rejected.  The outcome of the debate is that the whole process would be more under the control of the judges than the government wishes to be the case.  It is also significant that one amendment which would have prevented any further expansion of "secret courts" was lost.   Overall, major improvement to the bill was secured and it is to be hoped that the government now accept the amendments and not try to reverse them when the the bill goes to the Commons.

It seems that the Human Rights Joint Committee's Fourth report had considerable influence on members of the Lords.

Lords defeats on secret courts plans exposes coalition splits - Owen Bowcott - The Guardian 22nd November

Sergeant Danny Nightingale ~ Court-Martial and sentence

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Update 1st May 2013 - The Guardian reports ruling of judge that there was no abuse of process revealed by certain e-mails.

Update 22nd March 2013 - R v Sgt Nightingale – An unsolicited sentence indication by the trial Judge placed undue pressure on the defendant to plead guilty. Conviction quashed. LINK (Full judgment).  Sgt Nightingale's conviction quashed - retrial ordered.

Update 29th November:  The Court Martial Appeal Court altered Sgt. Nightingale's sentence to 12 months detention to be suspended for 12 months - Telegraph report.   Sgt Nightingale was told he would be freed immediately and was also granted leave to appeal against his conviction on the grounds that his guilty plea had been made on the basis of unsound advice.  This later hearing will be particularly interesting.

Here is the judgment of the Court Martial Appeals Court - Lord Judge CJ; Fulford and Bean JJ - 29th November 2012.

----

Original post:

Sgt. Danny Harold Nightingale (Duke of Lancaster's Regiment) was sentenced to 18 months detention (see Footnote 1) by the court martial for being in possession of a pistol and to 6 months for possession of ammunition - the sentences to be concurrent.  The Offences arose under the Armed Forces Act 2006 section 42 (Criminal Conduct).  The specific criminal conduct was (Count 1) Possession of a prohibited firearm contrary to the Firearms Act 1968 section 5(1)(aba) and (Count 2) Possession of Ammunition contrary to Firearms Act 1968 section 1(1)(b).  A particular feature of the offence under section 1(1)(aba) is that it carries a mandatory sentence of imprisonment of 5 years unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not imposing this - see Firearms Act 1968 section 51A.  On my reading, if exceptional circumstances are found to exist, section 51A would justify the imposition of either a shorter sentence of imprisonment or a suspended sentence of imprisonment or a non-custodial sentence.  The court found that exceptional circumstances did exist and they may be read in the Reasons for Sentence at pages 30 and 31 of the Transcript of the Court Martial proceedings (via Judiciary website)



The Judge Advocate (Judge McGrigor - Assistant Judge Advocate General) commenced the reasons for sentence by saying to Sgt Nightingale that he had "rendered very great service over the years both to the army and your country, particularly with regard to your current unit and your operational tours. You have an exemplary character ... "



Sgt. Nightingale was not dismissed or reduced in rank.  The Judge Advocate said:

We have not dismissed you or reduced you in rank as on the information before us we consider that you may still, with your specialist experience, be of use to the army in the future. We would invite those who will have to consider your future in the army in due course to bear these sentencing remarks in mind.


The Defence Secretary (Mr Philip Hammond) asked the Attorney-General to intervene in the case.  The AG declined arguing that could not become involved in on-going legal proceedings.  (See Footnote 2).

Sgt. Nightingale pleaded guilty to the offence but it is said that he did so having received suggestions from the prosecution and the judge that he would not face custody after a guilty plea - see The Guardian 21st November.   If true, that would raise a serious issue regarding the basis of Sgt Nightingale's guilty plea and, therefore, conviction.

An appeal has been lodged with the Courts-Martial Appeal Court (which is similar to the Court of Appeal Criminal Division) and will be heard on 29th November with the Lord Chief Justice presiding - see Telegraph 21st November


Footnote:

1.  Military Corrective Training Centre (Colchester) is where Sgt. Nightingale is held.  See MCTC Guide 

2.  The Service Prosecution Authority is headed by Bruce Houlder QC (Director of Service Prosecutions) and it operates under the general superintendence of the Attorney-General.  In all cases where it is intended there should be a trial by the Court Martial, it will be the DSP who takes the decision to prosecute and determines the charge or charges.



Links:

See BBC News Politics - Sgt. Danny Nightingale - Philip Hammond hopes for review - 21st November

Telegraph - Attorney General will not review case of jailed SAS soldier - 20th November 2012

Telegraph - MP says Sergeant Danny Nightingale has been let down - 19th November 2012


Judiciary - Transcript of the Court Martial proceedings

The [Justice] Gap - Minimum sentences: minimum justice - an interesting article here on the problems inherent in the Firearms Act minimum sentence provisions

Office of the Judge Advocate General

For further interesting observations on this case see:

Head of Legal blog - Danny Nightingale: the Attorney's right, Hammond was wrong. 

Head of Legal blog - Danny Nightingale's solicitor on Dominic Grieve

Supreme Court ~ Judgment on Vicarious Liability in Tort

03:09 0 Comments

The Supreme Court has handed down judgment in The Catholic Child Welfare Society and others (Appellants) v Various Claimants and The Institute of the Brothers of the Christian Schools (Respondents) [2012] UKSC 56

The question was whether the Institute was responsible in law ("vicariously liable") for alleged acts of sexual and physical abuse of children by its members between 1952 and 1992 at St Williams, a residential institution at Market Weighton for boys in need of care (‘the School’).   Claims were brought by 170 men alleging abuse at the school. 


There are two groups of defendants - referred to in the judgment as the Middlesborough defendants and the De La Salle defendants.  The "Middlesbrough Defendants”  were those who took over the management of the school in 1973 and inherited, under statute, the liabilities of the managers of the school before that date. They, or those they represent, concluded contracts of employment with the brother teachers.


The Middlesborough defendants were held by the High Court to be vicariously liable for acts of abuse by those teachers and they no longer challenged that liability. However, they took issue with the judge’s finding, confirmed by the Court of Appeal, that the second group of defendants were not also vicariously liable for the acts of abuse committed by members of the Institute.

The Supreme Court held (unanimously) that it was fair, just and reasonable for the second group of defendants to share with the Middlesborough defendants vicarious liability for sexual abuse committed by the brothers.  The court held:

• It is possible for unincorporated associations (such as the Institute) to be vicariously liable for the wrongful acts of its members

• It is possible to be vicariously liable even if the wrongdoer’s act is in breach of the duty he owes to the person liable and even if the act was the criminal offence of sexual assault; and

•  It is possible for two or more different defendants each to be vicariously liable for a single wrongful act

Establishing vicarious liability involved a synthesis of two stages:

1.  whether the relationship between the member and the Institute was one which was capable of giving rise to vicarious liability

2.   examination of the connection that linked the relationship between them with the member’s wrongful act or omission

The relationship between the Institute and the teaching brothers at the School had all of the essential elements of that between employer and employee. The teaching activity was undertaken because the brothers were so directed by the Institute; it was in furtherance of the mission of the Institute and the manner in which the brother teachers were obliged to conduct themselves was dictated by the Institute’s rules. The fact that they were bound to the Institute by their vows rather than contract, and transferred all their earnings to the Institute, did not make a material difference. Thus the first stage of the test for vicarious liability was satisfied.

Stage 2 of the test is usually satisfied when a wrongdoer does something he has been required or requested to do pursuant to his relationship with the defendant in a manner that is negligent. But sexual abuse can never be a negligent way of performing such a requirement. Where abusers have been members of a church or religious order, what has weighed with the courts has been the fact that the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them as teachers and men of God.

 In this case the Institute placed the brothers in teaching positions and in particular the position of headmaster, responsible for running the School. The boys living on the premises were particularly vulnerable, not just as children in a school but because they were virtually prisoners and would have difficulty making credible allegations of abuse because of their personal histories. The status of a brother was no doubt treated by the managers as an assurance that children could safely be entrusted to his care. The placement of brother teachers in a residential school thus greatly enhanced the risk of abuse by them if they had a propensity for such misconduct. This was not a borderline case and it was fair just and reasonable for the Institute to share vicarious liability in this case with the Middlesborough Defendants.

Press release

Full judgment

Crown Court at Carlisle ~ Sentencing - R v Ahmed ... R v Johns

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Two sentencing cases at the Crown Court in Carlisle are of interest.  Both cases offer excellent examples of good sentencing practice and demonstrate the value of sentencing remarks which assist public understanding of the workings of the law.

On 4th August, this blog looked at the sentencing of Iftikhar and Farzana Ahmed for the murder of their daughter Shafilea Ahmed - (Law and Lawyers 4th August).   They were sentenced to life imprisonment with the trial judge - Roderick Evans J - stipulating a minimum custodial term of 25 years (less 66 days on remand). 

On Friday 16th November, at the Crown Court sitting in Carlisle, Irwin J sentenced Alesha Ahmed for robbery at her parent's home in 2003.  It was, in Irwin J's words, a violent and terrifying robbery.  Alesha had actively helped the men who came to the house armed though it was accepted that Alesha did not know they would come armed.  Alesha had used text messages to communicate with the robbers and was present during the robbery.  She pleaded guilty.

This was a case with truly exceptional circumstances which are described eloquently in Irwin J's excellent sentencing remarks - (Judiciary website - Sentencing remarks of Irwin J).  The learned judge was able to exercise mercy and sentenced Alesha to 12 months imprisonment suspended for 2 years with conditions of supervision and mental health treatment.


The second case is R v Ronald Charles Johns who had been Vicar of Borrowdale and a Canon at Carlisle Cathedral.  He is now 75 year of age.   (Judiciary website - Sentencing remarks of Singh J).   In the period 1983 to 1991 he committed some 10 sexual offences involving 3 victims referred to by Singh J as A, B and C.  The offences were under the law applicable at the time - Sexual Offences Act 1956.  Johns pleaded guilty and had no previous convictions.

There were some testimonials on Johns' behalf which spoke of the distinguished service he had given to the Church and the help given to other people.  There was also a statement from the Archdeacon of West Cumberland to the effect that Johns' offending had harmed the standing and credibility of the church.    This case contained a number of aggravating features including abuse of trust and offending over a lengthy period.  However, Johns had no previous convictions and pleaded guilty to all matters.   Bearing in mind the totality principle (see Totality and TICs here), Singh J sentenced Johns to a total of 4 years imprisonment and imposed a Sexual Offences Prevention Order.   Johns will be the subject of disqualification by the Independent Safeguarding Authority and will be subject to the notification requirements which apply to a person who is on the sex offenders’ register for the period which is laid down by law.

Cut the crap ~ We are at economic war ... David Cameron and Judicial Review

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Updated

The Prime Minister has launched what will be seen as a further attack on access to justice.  In a speech to the Confederation of British Industry, Mr Cameron said that the nation is in the "economic equivalent of war" and that he wishes to rein in certain processes which he considers are hindering infrastructure projects and economic growth.  He listed some of these "inconveniences" - impact assessments, consultations, audits, reviews, EU procurement rules, assessing sector feedback.  "If Christopher Columbus had an Advisory Committee he would probably be still in dock", said Cameron.  As for Judicial Review, Mr Cameron expressed the desire to cut back on the number of applications by imposing tighter time limits (already only 3 months), higher application fees and reducing the number of opportunities to argue about the court's permission to allow an application to proceed.  

Law Society Gazette - 19th November 2012 - Fury and Bewilderment at plans to curb judicial reviews

Ministry of Justice - 19th November - Unclogging the Courts  where the Justice Secretary states:




'The Government is concerned about the burdens ill-conceived cases are placing on stretched public services as well as the unnecessary costs and lengthy delays which are stifling innovation and economic growth.

'We plan to renew the system so that Judicial Reviews will continue their important role but the courts and economy are no longer hampered by having to deal with applications brought forward even though the applicant knows they have no chance of success. We will publish our proposals shortly.'

Christopher Columbus - replica ship in dock

Judicial Review is the process by which the High Court (or, sometimes, the Upper Tribunal) is able to review a decision made by a decision-maker such as a government Minister or a body exercising public duties.  The court is NOT concerned with the MERITS of the decision but it is concerned with the LEGALITY of the decision.  Essentially, judicial review enables those affected by the decision to argue that it is somehow wrong in law - e.g. because the decision is beyond the powers given to the decision-maker by Parliament.  The various grounds for challenge are essentially in the body of law referred to as "Administrative Law."  The grounds were summed up by the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1984] AC 374 as illegality; irrationality and procedural impropriety.  Since October 2000, the Human Rights Act 1998 has added to that list by requiring public authorities to act compatibly with human rights - (section 6).  

The process of judicial review grew out of the historic "supervisory jurisdiction" which the High Court acquired from the earlier Court of Queen's (King's) Bench.  Under this jurisdiction, the High Court is able to act in six ways: quashing order (used to be called certiorari), prohibiting order (formerly prohibition), mandatory order (formerly mandamus), declaration (to state what the law is), injunction and damages (particularly where there is a breach of human rights).

Judicial review is a remedy of last resort since it may not be used where there is another remedy such as an appeal.  Applications are already subject to a strict 3 month time limit which is rarely waived.  The High Court's permission to proceed is required (which should weed out applications which have little chance of success) and the applicant must have standing to bring the review (e.g. by being personally affected by the decision).  The process is complicated and certainly not cheap and, once permission is obtained, the case may take some time before it is decided and, even after that, there may be appeals. The more frequent areas where judicial review is used are in immigration and asylum cases and, sometimes, in relation to decisions of Coroner's Courts.  Interestingly, the government has only recently decided NOT to bring in an appeals process from Coroners and so judicial review remains the only route of challenge. 

Lord Bingham once wrote (The Business of Judging: Selected Essays and Speeches - January 2000) that two key dates in the modern history of Judicial Review were 1977 and 1984.  In the former year, quite modest changes in the procedure for seeking judicial review: “transformed judicial review from the part-time activity of the few to a mass sport for the many… In the process an old truth was demonstrated: that with courts, as with airlines, a demand only becomes evident when the means exist to meet it.”
Perhaps that quotation would be music to Cameron's ears but the late Lord Bingham would undoubtedly have been among the first to recognise the vital importance of judicial review in a democratic nation.  In his final book "The Rule of Law" Lord Bingham set out eight principles inherent in the phrase "rule of law."  These included his fourth principle:

"Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably" - see The Guardian 7th September 2011

Here is the true constitutional purpose of judicial review which requires even government itself and powerful Ministers to adhere to the law.

The process of judicial review has undoubted value as exemplified by the recent West Coast line bidding fiasco (BBC 3rd October) where, interestingly, it was the EU procurement process which gave Virgin Trains time to launch their application for judicial review of the bidding process (The Guardian 3rd October).  In the event, the judicial review did not proceed but the possibility forced the government to re-examine the situation.  The government decided to scrap its decision to award the franchise to FirstGroup; some civil servants were blamed and a Minister was reshuffled to Overseas Aid.  The bids cost in the region of £40m and were submitted to government some 15 months prior to the flawed decision.

However inconvenient it may be to impatient Ministers, judicial review is essential in a democracy and access to it should not be restricted further but there is surely scope to reduce the length of time applications take before final decision though, like most things, reducing this time frame requires significant resources which Ministers are unwilling to apply to the judicial system.  In this way, access to justice for the citizen receives another blow under the cover of the economic situation.

The Ministry of Justice has said that a "public engagement exercise" will be "carried out shortly - Unclogging the Courts .  Whether that exercise differs from "consultation", and if so how, remains to be seen.



Senior Courts Act 1981 section 31

Civil Procedure Rules Part 54

Law Commission 1994 No. 226 - Administrative Law: Judicial Review and Statutory Appeals - The procedure known as Application for Judicial Review was introduced in 1977 as a result of the Law Commission report (Remedies in Administrative Law 1976 No. 73).  In 1994, the Law Commission made further recommendations with a view to ensuring that judicial review operated within an effective procedural framework.

Web Journal of Current Legal Issues [2000] 5 Web JCLI - The New Rules of Procedure for Judicial Review where Tom Cornford (University of Essex) looked at changes made when judicial review was brought within the Civil Procedure Rules Part 54.  Order 53 of the Rules of the Supreme Court, which contained the rules of procedure for judicial review, was been abolished and replaced by Part 54 of the Civil Procedure Rules. The Rules bring judicial review fully within the framework of the CPR and also implement certain recommendations of the Bowman Committee’s Report on the Crown Office List. The result is a procedure which is in most respects the same as its predecessor. There are, however, also some significant changes, most notably with respect to the permission stage and third party intervention. The latter change is an advance, but the former represents a further tipping of the scales in favour of defendant public authorities.

Public Law - Guide to Judicial Review Procedure - good reading here for those wishing to see some of the detail of the hurdles which applicants for judicial review must already surmount

Administrative Law Bar Association October 2010 - Nigel Griffin QC - Introduction to judicial review

Introduction to Judicial Review - a paper by Charles George QC

Judicial and Court statistics 2011 - see page 65 for data regarding the number of judicial review applications in 2011.

Full Fact 19th November - Has there been a huge growth in the number of judicial reviews?  Here, Full Fact looks at the statistical data.


The Guardian 19th November - David Cameron plans clampdown on judicial review rights where Patrick Wintour and Owen Bowcott point out that Cameron's reform will affect ALL judicial review applications and not merely those connected with planning matters

The Guardian 19th November - Diminishing judicial review will reverse 50 years of legal progress where Jeffrey Jowell QC looks at how judicial review has developed since the 1960s and how it has been copied by many other States particularly in the British Commonwealth.  Jowell argues that judicial review is fundamental to the rule of law. 


Charon QC 19th November - Breaking from the MoJ - Trial by Ordeal to unclog the courts

UK Human Rights blog 19th November - A War on Judicial Review?

Supreme Court ~ Important decision due about Vicarious Liability in Tort

04:03 0 Comments

On 21st November, the Supreme Court will hand down judgment in The Catholic Child Welfare Society and others v The Institute of the Brothers of the Christian Schools and others .  This is an appeal from the decision of the Court of Appeal (Civil Division) - Pill, Hughes and Tomlinson LJJ - in October 2010.

The issue in the Supreme Court:

The Supreme Court's website states that the question is whether the defendant Institute is vicariously liable for acts of sexual and physical abuse committed by its members who were working at a School.

170 pupils, who attended the School in Market Weighton between 1958 and 1992, brought claims alleging sexual and physical abuse by teachers and staff at the school. The claims were against 35 defendants, some representing the Roman Catholic Diocese of Middlesbrough, which appointed managers of the school and others connected with the Institute of the Brothers of the Christian Schools, of which some of the teachers had been members.


The Court of Appeal's judgment:

In the Court of Appeal, Hughes LJ described vicarious liability as "derivative liability without fault, under which D2 carries liability for the tort of D1, without being himself a tortfeasor, on the grounds of the relationship between himself and D1 and his connection to D1’s tort."  Hughes LJ offers a useful summary of vicarious liability at paragraphs 35 to 45 of his judgment.  He noted (para 35):

"There is not much doubt about the principal rationale for this non-fault liability, which is loss distribution, D2 being more able to bear the loss than D1, often (although not always) because he can and will in practice insure against it. Where there is such insurance, the cost is often in effect passed on to the buyers or users of the service or goods provided by D2."

Hughes LJ also noted the recent case of Bernard v Attorney General of Jamaica [2004] UKPC 47, where the Judicial Committee of the Privy Council, held that, on the facts, a policeman’s use of his service gun whilst acting qua police officer fixed the Attorney General with vicarious liability, warned that there was a need to keep vicarious liability within clear limits and that the principle was not infinitely extendable.  (Lord Steyn's judgment at paras. 21 to 23).

The Court of Appeal held that the Institute did not, as an unincorporated association, carry either vicarious or primary liability for any acts of abuse which may be proved in this litigation. 

The JGE case:

Earlier this year. another case on vicarious liability reached the Court of Appeal - JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938,where the court held that a bishop could be  vicariously liable for abuse carried out by a parish priest. 

The judgment of MacDuff J in the JGE case was discussed in an earlier post on this blog -Vicarious Liability for Intentional Tort - 16th January 2012.  The Court of Appeal decision in JGE was considered on 18th July - Vicarious Liability for Intentional Tort - Roman Catholic Priest. 

Keeping vicarious liability within clear boundaries?

Lawyers will be hoping that the Supreme Court clarifies the extent to which vicarious liability in tort will be permitted and also the tests for its existence.  The likelihood is that the court will seek to bring the concept within quite tight boundaries.  This is important if people are to be able to be reasonably clear about their potential liabilities and, where necessary, insure against those liabilities.

Mohammed Othman (Abu Qatada)

12:46 0 Comments

Update 4th December:  The Government is to appeal the decision of SIAC.  As predicted (below), the Home Secretary is not yet prepared to give up the chase!  The Guardian 3rd December.

---

The most recent round of litigation concerning Mohammed Othman (Abu Qatada) commenced in 2005 and continues with the distinct possibility that it may continue for some time to come.  In August 2012, the High Court said - "There has been a prodigious litigation history to this claimant’s position in this country."   Previous posts on this case are:

Pesky time limits and Abu Qatada ..... Pesky time limits and Abu Qatada - No.2

Theresa May's trip to Jordan .....Othman - High Court ruling

Why does the government wish to deport Abu Qatada?

Since before 2002, the government has viewed AQ as an exceptionally high terrorist risk.  The Special Immigration Appeals Commission has agreed with this.  In 2007, SIAC found - [AQ's] views on the use of violence in the UK have, ... , hardened, and his expressions of them do encompass the legitimacy of attacking people in the UK. ”



Since 2002 the Government has wished to deport him to his country of birth, Jordan and, in 2005, made a formal decision to do so. AQ has consistently resisted this.

In Jordan, AQ was convicted in his absence of certain criminal offences under Jordanian law.  If returned to Jordan, he would face re-trial  upon certain terrorism charges.  AQ argues that to send him there would be unlawful  because it would infringe a number of his rights under the European Convention on Human Rights (“ECHR”) - under Articles 3, 5 and 6.

Jordan and torture:

There is no doubt that, historically,  torture rook place in Jordan - e.g. Human Rights Watch 8th October 2008.  In 2007, Jordan amended its Penal Code to make torture a criminal offence.  In 2011, the Jordanian Constitution was amended to prevent torture or physical or emotional harm to detainees - see Amnesty Report 2012 - Jordan.

The link between AQ's case and Jordan's past record is that it is claimed that statements of two men (Abu Hawsher and Al-Hamasher) were obtained by torture and that there is a real risk that their evidence might be used at a present day trial of AQ.

The British government has tried to seek diplomatic assurances that this would not be the case including Theresa May personally flying to Jordan in March 2012 - see Channel 4 (5th March).  The government was hoping that the assurances it had received would be sufficient to allow AQ's deportation.

At Strasbourg:

On 17th January 2012, the European Court of Human Rights 4th Section gave judgment in Othman (Abu Qatada) v UK .   Strasbourg held held that the assurances offered by Jordan were adequate to protect him personally from torture and so Article 3 (Prohibition on torture etc) would not be breached.  (Jordan had also agreed not to impose a death penalty).  However, the ECtHR also held that Article 6 (Right to a fair trial) could be breached since there was a real risk of the admission, at the applicant’s retrial, of evidence which had been obtained by torture of third persons. 

It was against the background of this judgment that the British government sought to stiffen the assurances that Article 6 would not be breached.

A request by AQ - submitted on 17th April 2012 - for the Grand Chamber to hear a reference was held to be in time (just) but the Grand chamber declined to hear the referral.

Thus it was then left to SIAC to determine whether the assurances were actually sufficient to meet the requirements laid down by Strasbourg.

SIAC's judgment:

On 12th November, SIAC (Mitting J; Judge Peter Lane; Dame Denise Holt) held that, despite the assurances, AQ could not be deported.  The SIAC judgment is here.  This is the OPEN judgment.  There is also a closed judgment with closed reasons.  The government will appeal to the Court of Appeal though such appeals have to be on points of law only.

The Secretary of State accepted that if SIAC were to were to find that the test identified by the Strasbourg Court has not been satisfied, then SIAC could or should allow the appellant’s appeal on the basis that her discretion should have been exercised differently under section 86(3)(b) of the Nationality Immigration and Asylum Act 2002.


The test to be applied [by SIAC] in ‘foreign’ Article 6 cases is discussed in detail in paragraphs 17 – 24. On the Article 6 issue, SIAC was satisfied that the Secretary of State should have exercised her discretion differently and should not have declined to revoke AQ's deportation order. Accordingly, his appeal was allowed.

Counsel for the appellant and defendant “accept that the test which [SIAC] must apply is whether or not there is a real risk that the impugned statements will be admitted at the appellant’s trial as proof of his guilt.” (para 24) 

At the heart of the decision on Article 6 is a question of Jordanian law about which the various witnesses had some disagreement.  

According to SIAC - [para 78] - Jordan needs to amend its law in a number of ways if the assurances given by the Jordanian government are to be acceptable.  Para 78 indicates: (a) amend the Jordanian criminal code; and/or obtain rulings from the higher courts in Jordan so that statements such as the two in question in this case cannot be used against a  returning fugitive; and/or (c) amend the law so that the prosecutor carries the burden of proving that a statement was not obtained by torture.

It seems that, but for these points, the assurances would have satisfied SIAC - see para 87 - "We remain convinced that the government of Jordan can and will fulfil its assurances about the treatment of the appellant on return."

It is therefore no surprise that the government is seeking to appeal this decision.

The future:

The next step will be in the Court of Appeal which could turn down the government's application to appeal but that is perhaps unlikely though, it should be noted that an appeal would have to be on a point of law and, in English courts, questions relating to foreign law are treated as questions of fact.   If the Court of Appeal gave judgment in AQ's favour, an appeal to the Supreme Court would be considered.  If all this fails then there would be no grounds to detain AQ unless the Home Secretary decides to make him subject to a TPIM and, in this event, the litigation is likely to continue for some time (years?) to come - see Terrorism Prevention and Investigation Measures Act 2011.  With much personal and political capital invested in this case, the present Home Secretary is perhaps unlikely to give up the chase !

Side note:

After the Abu Hamza case (extradition to USA),  the Justice Secretary announced a review of legal aid - BBC 7th November.  The government is known to be irritated by the high costs involved in some of these cases and even the Lord Chief Justice expressed, at his recent press conference, dissatisfaction with the lengthy legal processes - "I am not going to comment about an individual case, but any case that takes eight years through a whole series of judicial processes to come to a conclusion -- and you make the point that it has not yet come to a conclusion -- is a source of real fury to me. We really cannot have cases taking that long to reach a solution. It is not fair to anybody. It is not right."

Summary of the Judgment:

The Judiciary has a summary of the judgment.

Further reading:

UK Constitutional Law Group - Blog - Tom Hickman: The return of Abu Qatada (to the streets of London) - 14th November 2012.

CharonQC - UK Law Tour: Report #7 Human Rights Law - Carl Gardner on the Abu Qatada judgment - 13th November 2012

UK Human Rights Blog - Jim Duffy - Preventing a flagrant denial of justice - 13th November 2012

UK Human Rights Blog - Abu Qatada: in the public interest - Adam Wagner, 16th November 2012

Of Interest to Lawyers - What's this SIAC all about?  -the author looks at the make up of SIAC