A brief look back at 2013 ~ A selection of posts

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Royal Courts of Justice, London

2013 has been a most interesting year marked by the limitation imposed on civil legal aid by the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; the on-going fight for legal aid for criminal cases and the ceaseless attacks on the system of human rights protection offered to all of us by the European Convention on Human Rights and the European Court of Human Rights.  Here are some of the posts on this blog during 2013:


January

Hillsborough - Fresh Inquests - the question of Article 2 compliance - In December 2012, the original Hillsborough Inquest verdicts were quashed by the High Court.  Progress is being made toward holding the new inquests in 2014.

The trial and execution of Derek Bentley - 60 years on



February

Special measures in criminal proceedings - trial of Michael Brewer - The story of the late violinist Frances Andrade who did not take special measures when giving evidence against musician Michael Brewer

The Jury - there was criticism of the jury system following the discharge of the first jury to try Vicky Pryce

March

Getting rid of foreign criminals - The decision in Izuaza sent the Home Secretary into orbit and it was used to attack human rights protection.  These attacks were to become a theme of certain Ministers and, later in the year, even some serving judges joined in the fray compromising, in my opinion, their neutrality.

The Fortnum and Mason protest -  dated back to the March 2011 protest at the famous London shop by supporters of UK UNCUT

April

Baroness Thatcher of Kesteven - the death of former Prime Minister Margaret Thatcher brought howls of hatred from those who opposed her.  In this post I tried to take a balanced look at her time in office.


Court of Protection - Overview - always just as step or so away from controversy, this court deals with cases on behalf of those who are unable to make decisions for themselves.  In this post I sought to explain the court and its role.

May

Privatisation of the courts - The Times on 28th May stirred things up by an article stating that the government was considering "privatisation" of the court system

The real scumbag criminal is still free - this was concerned with the attack on criminal legal aid - lack of well qualified legal representation can lead to miscarriages of justice and also the failure to convict the truly guilty

June

Responses to the Ministry of Justice consultation on criminal legal aid
 - Some 16000 responses hit the Ministry of Justice in relation to their proposals on criminal legal aid.  The vast majority of commentators were against the proposals.  Here I tried to collate some of the responses which had been published.  The MoJ claimed to have read them all thoroughly.  I wonder?   However, Price Competitive Tendering was dropped. 

Legal Aid - Backbench debate - heavy criticism from the bankbench MPs on the government's criminal legal aid proposals

July

Vinter and others v UK - the European Court of Human Rights - human rights again - this time on the thorny question of whole life terms for murderers.  The European Court of Human Rights ruled that, whilst such terms might be imposed, there had to be a review after about 25 years to see whether continued detention was necessary on penological grounds.  Here was the classic example of why some politicians hate the E Ct HR.  They argue that if the UK Parliament wishes to impose whole life terms in appropriate cases then that should be that and the E Ct HR should not be interfering.

The Anti-social Behaviour and Crime Bill - a wide ranging criminal justice bill

August

Detention of David Miranda - detention and questioning under the problematic Terrorism Act 2000 Schedule 9.  The case rumbles on into 2014.

Forced marriage - enforcement of prevention orders


September

The 60th Birthday of the European Convention on Human Rights

A look at the Michael Turner (aka Le Vell) case - perhaps better known by his stage name "Kevin Webster" this Coronation Street actor was acquitted after trial at the Crown Court in Manchester

October

We by Our Prerogative Royal will ordain ... - Press Regulation - the Royal Charter - follow up from the Leveson Inquiry held in 2012.

May a whole life sentence be imposed for murder?- back here to the problems arising from the decision in Vinter and others v UK.

November

The European Charter of Fundamental Rights - another example of "European interference" in national affairs - given the so-called "opt out" is the Charter actually binding in UK courts?  A look at Mostyn J's judgment in R (AB) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin).

Parliament - Prisoner Voting Evidence - the evidence to Parliament of Secretary-General of the Council of Europe Thorbjorn Jagland and Dominic Grieve QC the Attorney-General.

Supreme Court - J (Children) - a vastly important decision for family lawyers concerned with care proceedings in relation to children

December

Very much a month when human rights dominated the headlines because of the views of (in the red corner) Lord Sumption, Lord Justice Laws, Lord Judge and (in the blue corner Lady Hale along with, to some extent, Lord Mance).

My thoughts as a citizen about Lord Sumption's lecture

The Hamlyn Lecture by Lord Justice Laws

Lady Hale on Human Rights Law


The UK Human Rights blog has a very good Review of 2013. Marilyn Stowe's blog has Reflections on 2013 - Part 1 and Part 2.

So there it is.  Here's wishing all readers a very happy New Year 2014.  Thank you for reading the blog and for those who have offered good comments. The court is now adjourned for what remains of 2013 and will resume sittings in the New Year.  ObiterJ. 

New Year's Eve 2013 (1) - Are Human Rights approaching a knife edge?

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Striding Edge, Helvellyn

The protection of human rights is, yet again, in the headlines following  an interview on the Radio 4 TODAY programme by former Lord Chief Justice of England and Wales (Lord Judge) - see The Telegraph 28th December 2013 - European Courts have too much power, says former Lord Chief Justice.   An extract from the interview is available via this Radio 4 link.  

There is much in Lord Judge's comments to take issue with but his views will undoubtedly lend succour to those in the present coalition government who harbour an intense dislike of the European Court of Human  Rights.  After all, it acts as a brake on the massive power that the doctrine of Parliamentary Supremacy (or Sovereignty) confers, in practice, on the executive branch of government.  The latest views of the Secretary of State for Justice and Lord Chancellor are covered by an article in The Guardian 30th December - Grayling says European Court of Human Rights has lost legitimacy.   Some serving judges have also been critical of the European Court of Human Rights.  The recent views of Lord Sumption and Lord Justice Laws were considered here and here (respectively).

There is some counterbalance in the views of Lady Hale and Lord Mance - considered here and see here (pdf).  Lord Mance points out that Parliamentary Sovereignty is unconstrained by any written constitution or document containing fundamental rights.  He highlights some of the changes to law brought about since the Human Rights Act 1998:

Christmas Day 2013

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Manchester Christmas Markets 2013

Christmas Day!  The Houghton Weavers once asked- "What's Christmas without a brass band" and so here is a superb selection of carols played by musicians of the Salvation Army.  I hope you enjoy it.  There is also a light-hearted item played by a world famous brass band from West Yorkshire - Brighouse and Rastrick play SANTA.

Let us hope that 2014 proves to be a peaceful and happy year.  There is much to work for if access to justice and the generally high standards of our legal system are to be maintained.  There is much to be done for the less well-off in our country and across the world there are massive challenges. 

Here is a quick glance at a few items of interest ..... 
Lord Mance (Justice of the Supreme Court) has spoken about "Europe" - "Destruction of Metamorphosis of the Legal Order" - "No man is an island" states Lord Mance and neither can a nation stand alone in the modern "globalised" world.  He concentrates on what he termed "the European project, resting on the twin foundations of the European Convention on Human Rights and the European Union."  Lord Mance highlights some of the benefits brought to the UK by the European Convention on Human Rights and the Human Rights Act 1998.


Writing in The Guardian 22nd December, Jon Henley asks - Why is the European Court of Human Rights hated by the UK right?  I urge you to read and consider it.  Regular readers of this blog will have realised that I am pro-the European Convention on Human Rights and the Human Rights Act 1998.  The Convention system offers protection for the individual against the excesses of State power.  If the Convention is to do this effectively, the Convention must be a "living instrument" capable of being sensibly adapted to changing circumstances.

The Secretary of State for Justice has announced a "pardon" for Alan Turing who was instrumental in breaking the Enigma Code used by the Germans in World War 2.  A previous post on Turing is here.  The Head of Legal blog has a very good and well-reasoned analysis of this pardon.

The Defence Brief blog looks at the sentencing of Denis MacShane in relation to parliamentary expenses and how his 6 month sentence compares with guidance for benefit fraud.   A reasonable argument here, I think.

CharonQC has been missed for a considerable part of 2013.  He had an accident and he was not able to keep up his usual level of blogging.  It is good to see that he is getting back into harness and he "has a go" at the Secretary of State for Justice for bringing in new prison regulations which forbid the sending of even a Christmas card to a family member who is "inside" at Christmas - Lord Chancellor Grayling has shamed our nation - It revolts me

Marilyn Stowe is a great family law blog and it has several interesting posts: Citizens Advice estimates half a million unreported Victims of Domestic Violence; A family lawyer's Christmas wish list by John Bolch; Christmas is for the children; and My review of the year (part six) by John Bolch.  A superb blog with "classy" presentation.

Lastly, for this post, I turn to the UK Human Rights blog with its formidably talented team of writers.  Their weekly roundups of news are always pertinent, informative and interesting.  Here is the one of 23rd December.   Thanks also to this blog for sometimes linking to some of my posts.

Enjoy the Festive Season - think of those less fortunate and, if you can, help them.  In the restless world of the law, there will be much more to write about in the coming days and months.       

Nigella Lawson and section 100 of the Criminal Justice Act 2003

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The trial of sisters Elisabetta and Francesca Grillo became a media circus because television celebrity Nigella Lawson (pictured) was the key prosecution witness. The Grillos were accused of fraudulently using the credit cards of Charles Saatchi's private company - Telegraph 27th November.   They were acquitted.  The sisters claimed that Lawson had permitted them to use the credit cards in exchange for their silence regarding her drug use.  R v Grillo and Grillo. This was a claim which brought into play the "bad character" provisions in the Criminal Justice Act 2003 Part 11 Chapter 1.

The 2003 Act replaced common law rules relating to bad character evidence and essentially made a fresh start with regard to when evidence of bad character might be used at trial.  Bad character evidence of non-defendants and defendants is addressed by the Act.



By section 98, evidence of a person’s “bad character” is defined as evidence of, or of a disposition towards, misconduct on his part, other than evidence which - (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence.   Thus, bad character is not confined to previous criminal convictions or cautions but extends to "misconduct" and, by section 112, "misconduct” means the commission of an offence or other reprehensible behaviour.  Possession of a controlled drug is, of course, an offence - Misuse of Drugs Act 1971 section 5 and so, in principle, evidence that a person possessed a controlled drug could amount to bad character evidence.

Section 100 deals with "Non defendant's bad character."  It is possible for all parties to agree that such evidence be introduced - section 100(1)(c).  If there is no such agreement, a party who wishes to adduce bad character evidence of a witness must apply to the court for leave to introduce the evidence and, by section 110, the judge must state in open court (but in the absence of the jury) the reasons for a decision.

The conditions (or "gateways") for admissibility of non defendant bad character are set out in section 100.  The evidence of bad character must either:

(a) be "important explanatory evidence" - section 100(1)(a) or

(b) have "substantial probative value" in relation to (i) a matter in issue in the proceedings and (ii) be of substantial importance in the context of the case as a whole - section 100(1)(b) or

(c) all parties to the proceedings agree to the evidence being admissible.

Evidence is "important explanatory evidence" if (a) without it, the court or jury would find it impossible or difficult to properly understand other evidence in the case, and (b) its value for the understanding of the cases as a whole is substantial.

In assessing the probative value of evidence, the court must have regard to a non-inclusive list of factors set in section 100(3) - e.g. the nature and number of events, or other things, to which the evidence relates and when those events or things are alleged to have happened or existed.  Section 100 goes on to deal with certain other matters.

Arguably, section 100 has the potential to deter individuals from giving evidence.  This is discussed by Geoffrey Robertson QC in an article in The Guardian - The vilification of Nigella Lawson: this is no way to treat a witness.   Robertson states:

'Criminal justice is dependent upon the willingness of witnesses to testify in public – a nerve-racking experience. If they or their family can be vilified, in the defamation-free zone of a courtroom, then they will be reluctant to do this civic duty.'

He concludes by arguing:

'The best way forward would be for parliament to amend section 100 so that whenever a judge permits "bad character" cross-examination of a witness with "good character" (ie with no previous convictions), such witnesses should be entitled to their own counsel who could cross-examine their accusers and call evidence of innocence.'

Interestingly, in the Grillo case, the trial judge had initially refused to permit bad character evidence to be introduced.  As Robertson states:

The law (section 100 of the Criminal Justice Act 2003) only allows "bad character" evidence about a witness if this might have "substantial probative value", and in a detailed ruling delivered on 15 November the judge refused to allow it. A few days later, the judge changed his mind when he was shown the email Charles Saatchi sent to his ex-wife after he had seen confidential statements apparently made by the Grillos to their solicitors, which had mysteriously appeared on an internet blog site.' 

The law in the Criminal Justice Act 2003 is based on the Law Commission's report (LC273, 2001) - Evidence of Bad Character in Criminal Proceedings.  Section 100 has resulted in a considerable amount of case law - e.g. Brewster 2010

A very useful resource on bad character evidence 

Prisoner voting - Joint Committee report and also Scottish Independence Referendum

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Prisoner Voting - Draft Bill:

The Parliamentary Joint Committee on the Draft Voting Eligibility (Prisoners) Bill has reported – (PDF/HTML/conclusions).  The report recommends:

...  that the Government bring forward a Bill, at the start of the 2014 -15 session of Parliament, to give legislative effect to the following conclusions:

• That all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections;
• That such prisoners should be registered to vote in the constituency where they were registered prior to sentencing; and that, where there is no identified prior residence, they should be able to register by means of a declaration of local connection;
• That prisoners should be entitled to apply, 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released.

The report is further discussed on the UK Human Rights blog  - Joint Parliamentary Committee Report.

Previous post 7th November 2013.

Voting in the Scottish Independence Referendum:

In September 2014, Scotland is to hold a referendum on the question of independence.  In Petition of Moohan, Gibson and Gillon [2013] CSOH 199 - the Court of Session (Outer House) has rejected a judicial review of the Scottish Independence (Referendum) Act 2013 (an Act of the Scottish Parliament).  The petition was for a judicial review of sections 2 and 3 of the Act where eligibility to vote in the referendum is set out.

Lord Glennie noted:  This opinion, covering the arguments raised in three petitions, is concerned with the right to vote in that independence referendum. In particular, it concerns the right of convicted prisoners to vote. This is presently excluded by a blanket ban on prisoners voting. This was enacted by the Scottish Parliament. The question before the court is as to the legality of that blanket ban.

R v Reynolds - sentencing by Mr Justice Wilkie

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Crown Court at Stafford

R -v- Jamie Reynolds

Assisted Suicide ~ appeals to the Supreme Court of the UK

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This week, a nine judge strong Supreme Court of the UK has been hearing appeals concerning aspects of the Suicide Act 1961 section 2(1) Complicity in another's suicide Suicide.  It is perhaps the Nicklinson case which attracted the greater publicity (previous post) though, in this appeal, a Mr Lamb was also joined as an appellant.

In Nicklinson/Lamb, the issue is whether the prohibition on assisted suicide in s2(1) Suicide Act 1961 is incompatible with the appellants’ Article 8 right to respect for private and family life. If the answer is yes, the appellants argue that in order to comply with their Article 8 rights s 2(1) Suicide Act 1961 should be read as including a defence of necessity, so that it would not be unlawful for a doctor to assist, or to have assisted, in the suicide of Paul Lamb and Tony Nicklinson where they had made a voluntary, clear, settled and informed wish to end their lives but were unable to do so without medical assistance. Alternatively, if no such defence is available, they seek a declaration that s2(1) Suicide Act 1961 is incompatible with the appellants’ Article 8 rights, in so far as it prohibits assisted suicide in their circumstances.

A further appeal, being heard at the same time, is that of AM ("Martin").


In AM (“Martin”), there are two issues. The first is whether the DPP contravened section 6(1) HRA because his policy statement setting out public interest factors to be considered in the exercise of the discretion to prosecute is an unlawful interference with Martin’s rights under Article 8(1) ECHR (right to respect for private and family life). It is said to be an unlawful interference because it makes insufficiently foreseeable the consequences of a person encouraging or assisting him to commit suicide. The second issue is whether Article 8 requires the DPP not to discourage the sort of compassionate assistance with suicide that Martin seeks.

The Supreme Court Justices have been asked to consider a large volume of material including the report produced by Lord Falconer of Thoroton QC's Commission on Assisted Dying.  In May 2013, Lord Falconer introduced his private member's bill - Parliament - Assisted Dying Bill. 

Former President of the Family Division, Baroness Butler-Sloss, has argued that we tinker with assisted suicide laws at our peril - Telegraph 15th December 2013.   "Relaxing the law to allow assisted suicide in certain circumstances would turn a long-established legal boundary into nothing more than a weak “line in the sand”, she insisted.

The court will have to consider the argument - put forward to the court by the Ministry of Justice - that Parliament is the place where this controversial matter must be settled.  Even if the Supreme Court is bold enough to read the Suicide Act as including a defence of necessity, difficulties would remain.  Clarity would be required as to the precise circumstances when such a defence would apply.  Perhaps some form of regulation would be required.  How would the weak and vulnerable be adequately protected?  IF (and it is not a certainty) the Supreme Court were to make a declaration that section 2 was incompatible with Article 8, the actual law would not change.  It would then be up to Parliament to decide what to do.  In practice, that would probably require the government to either bring forward legislation or lend support to a private members bill such as that of Lord Falconer or to decide to do nothing about this and say why.  It would ill-become the Ministry of Justice to argue that Parliament is the proper place to resolve this question only for the government to then do nothing.

Additional materials:

An Assisted Suicide (Scotland) Bill was introduced into the Scottish Parliament 0n 13th November 2013.  See the Policy Memorandum.

A House of Commons Library Standard note of 16th March 2012 preceded a backbench debate held in the House of Commons - debate of 27th March 2012.

See also Parliament of Canada - for a useful background paper on the Canadian position. A former Justice of the Supreme Court of Canada (The Hon. John C. Major) has called for the Canadian Federal Government to act to update the law - CBC News 28th October 2013.    In the Canadian Supreme Court decision in Rodriguez v Attorney General of Canada [1993] 3 SCR 519, the court held (5 to 4) to uphold the existing law against assisting suicide.  Jack Major commented that a message to change the law was implicit in the Rodriguez decision.  "I understand why politicians don't want to touch it – because if they introduce a bill to change it, they lose the votes of those opposed. If they do nothing, they lose votes of those in favour,” says Major. “They've chosen to do nothing.”

The Rodriguez decision is considered at:

The problematic moral arguments in the Sue Rodriguez case,

The Court of Pain


Previous posts on this include:

18th June 2012 - Crossing the Rubicon

6th September 2012 - Questions of human mortality - will Parliament act or will the judges have to

13th May 2013 - Questions of Human mortality

Sentencing Council - New Guideline Document for Sexual Offences

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For individuals convicted of sexual offences, a new sentencing guideline document has been issued by the Sentencing Guidelines Council - Guideline.   The guideline is issued in accordance with section 120 of the Coroners and Justice Act 2009 and applies to all offenders aged 18 and over who are sentenced on or after 1 April 2014.

• Crown Court - Definitive Guideline: Sexual offences
• Update 10 - Magistrates’ Court Sentencing Guidelines

The Crown Court document is lengthy because of the considerable number of sexual offences which it seeks to address.  The majority of the offences are as defined by the Sexual Offences Act 2003.

With regard to a convicted individual's previous "good character", the new guideline says something which is rather interesting.

Consider the guidance for offences of rape.  The listed mitigating factors are: 
No previous convictions or no relevant/recent convictions, remorse, previous good character and/or exemplary conduct*, age and/or lack of maturity where it affects the responsibility of the offender, mental disorder or learning disability, particularly where linked to the commission of the offence.  The asterisk * next to 'previous good character and / or exemplary conduct' refers the sentencer to this note:

* Previous good character/exemplary conduct is different from having no previous convictions.  The more serious the offence, the less the weight which should be attributed to this factor.  Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor.  In the context of this offence, previous good character/exemplary conduct should not normally be given any siginificant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence.

Just what does this mean?   The Response to the Consultation (which preceded the new guideline) offers an explanation - see, in particular, pages 18 and 19.  Two decided cases are also of relevance: Milberry [2002] EWCA Crim 2891 and Hall [2013] EWCA Crim 1450.  

Here are two quotations from the Response:

A)  The Council has included “previous good character and/or exemplary conduct” as a mitigating factor in all its guidelines. This factor attracted a number of comments and the Rights of Women response echoed a commonly held view on good character.  “Previous good character and/or exemplary conduct is a dangerous factor to have as mitigation, even with the caveat provided that little weight should be attached. Although an
offender may have led an exemplary life or be of good character up to the point of the offence, this does not mean that, now having committed an offence, they should have their sentence reduced because of their previous activities prior to it.... This is also dangerous because exemplary conduct could be conducted alongside a life of sexual offending, for example, it is possible for someone to win a Nobel peace prize and simultaneously conduct a campaign of rape against their wife”

B)  the following wording will be added to all offences carrying a maximum of life or 14 years:
 
“In the context of this offence, good character/exemplary conduct should not normally be given any significant weight and will not normally justify a substantial reduction in what would otherwise be the
appropriate sentence.”
 
This approach follows established principles about lesser weighting in all serious offences but allows consideration of previous good character in a way that clearly signals to the public and sentencers that the process of assessing this mitigation requires careful consideration and weighting.


Observation:

Logically, there is previous ACTUAL good character and previous PERCEIVED good character.  Some individuals have developed a certain public image by doing work for charities/good causes - e.g. the late Jimmy Savile (previous post).  These activities enabled them to come into contact with (usually young) victims. It may be that such perceived good character was part of their attraction to those who became victims.  This appears to be what the guidance means when it states - "Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor."   

It will be interesting to see how this develops as it is applied by the courts in actual cases with all their varying facts.

Scientology - religious worship and marriage

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R (on the application of Hodkin and another) (Appellants) v Registrar-General of Births, Deaths and Marriages (Respondent)
Judgment (PDF)
Press summary (PDF)

This was a "leapfrog" appeal (under Part II of the Administration of Justice Act 1969) from a decision of Ouseley J in the High Court to the UK Supreme Court.   The "leapfrog" was used because a decision of the Court of Appeal - R v Registrar General ex parte Segerdal [1970] 2 QB 697 (Lord Denning MR, Winn and Buckley LJJ) - was binding on the Court of Appeal.  Unlike the UK Supreme Court, the Court of Appeal is bound by its own previous decisions with certain exceptions: Young v Bristol Aeroplane Company 1944.  The House of Lords used to regard itself as bound by its own previous decisions but that was altered by a Practice Direction of 26th July 1966 - [1996] 1 WLR 1234.  The UK Supreme Court did not re-issue the practice direction because it was not necessary - see UK Supreme Court Practice Direction 3.

The Hodkin case concerned an apparently straightforward question of statutory interpretation.  Were premises
used as a "church" by the Church of Scientology a "place of meeting for religious worship" within the meaning of the Places of Worship Registration Act 1855 section 2 (PWRA).  The Court of Appeal in the Segerdal case had answered the same question, in relation to different premises, with a NO. The Supreme Court overruled the Segerdal case with the result that the premises in question must now be registered under PWRA section 2 and it becomes possible for Louisa Hodkin and her fiancee to be married there.

Overview of the judgment:

One might have expected that the case would have been decided on "human rights" grounds by applying Article 9 of the European Convention on Human Rights.  The appellants put forward arguments based on the convention.  However, the Supreme Court was able to decide the case by interpretation, in the light of present day circumstances, of the words "religious worship."

Note that the Supreme Court accepted as accurate a statutory declaration from the Church of Scientology Minister.  The declaration covered the history, beliefs and practices of Scientology.  The Minister's evidence was not challenged.  Lord Toulson considered the Minister's evidence at paras. 15 to 22.  Next, Lord Toulson looked at the Segerdal decision - para. 23 - 30.

Lord Toulson continued (at 31) by saying that whether services performed in the chapel are properly to be regarded as a form of religious worship is inevitably conditioned by whether Scientology is to be regarded as a religion.  At [34] Lord Toulson said that the expression "a place of meeting for religious worship" has to be interpreted in accordance with contemporary  understanding of religion and not by reference to the culture of 1855 (when, of course, Scientology did not exist).

Interestingly from the viewpoint of the law of precedent, Lord Toulson then referred to an American case Malnak v Yogi 592 F.2d 197 (1979) and a High Court of Australia case -  Church of the New Faith v Commissioner of Payroll Tax (Victoria) (1983) 154 CLR.  Such decisions cannot bind English courts but may have persuasive force.

Lord Toulson [51] said that unless there is some compelling contextual reason for holding otherwise, religion should not be confined to religions which recognise a supreme deity.  "Ideas about the nature of God are the stuff of theological debate" [52].  For the purposes of the Charities Act 2011, the word "religion" was not confined to religions that believe in a God [54].  Here was an indication (in an Act of Parliament) that the understanding of religion in today's society is broad [55].    Furthermore, PWRA section 2 showed, by the language used, an intentionally broad sweep extending to "any other body or denomination of persons" [56].

At [57], Lord Toulson said:

"For the purposes of PWRA, I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word “supernatural” to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science.  I emphasise that this is intended to be a description and not a definitive formula."

At [60] Lord Toulson said that, on the approach he had taken to the meaning of religion, the evidence was amply sufficient to show that Scientology was within it.  The meaning given to worship in Segerdal was unduly narrow, but even if it was not unduly narrow in 1970, it is unduly narrow now [61].

The expression "religious worship" was wide enough to include religious services, whether or not the form of service falls within the narrower definition in Segerdal.  This view was supported by dictionary definitions of "worship" [62].  The authorisation of premises should not depend on "fine theological or liturgical niceties" which were "more fitting for theologians than for the Registrar General or the courts [63]. 

Differences with Strasbourg ~ are "battle lines" now drawn?

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The Court of Appeal (Civil Division) has considered two appeals by men subject to continuing detention after their "minimum terms" or "tariff periods" have expired. Haney and Khaiyam v Secretary of State for Justice

Mr Haney is serving an automatic life sentence for robbery.  He had a minimum term of 3 years which expired on 13th November 2012.  He claims that his Article 5 and 14 rights have been breached as a result of the delay in his transfer to open prison conditions (such transfer being a condition for his being realistically considered suitable for release by the Parole Board).

On 30th July 2006, Mr Kaiyam was sentenced to Imprisonment for Public Protection. A minimum term of 2 years 257 days was ordered.  He claims
that his Article 5 rights are breached because of delay in providing him with a suitable course which would afford him a reasonable opportunity to reduce the risk of his reoffending and thereby persuade the Parole Board to direct his release.  [He also made a related claim at common law which the court dismissed].

The Article 5 claims of both men had been rejected by the High Court because the binding House of Lords decision in R (James and others) v Secretary of State for Justice [2009] UKHL 22, [2010] 1 AC 553 required, as a matter of the domestic law of precedent, such a decision.   However, the European Court of Human Rights had subsequently held that the House of Lords was wrong - James, Wells and Lee v UK (2013) 56 EHRR 12.  (Previous post 20th September 2012)

Mr Lang's Article 14 claim had also been rejected because of the binding House of Lords decision in  R (Clift and others) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484 even though the E Ct HR had, in an unreported case, subsequently decided that the House of Lords was wrong.

The rejection of the claims was correct in the light of the House of Lords decision in Kay and others v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465 paras 40 to 45.

It was accepted that the Court of Appeal had no choice but to dismiss the Convention claims in both appeals.  The Court of Appeal went on to grant permission for an appeal to the Supreme Court and it did this without expressing a view on the issues in the case.  The Master of the Rolls (Lord Dyson) said:

"The issue of whether the Supreme Court should follow either or both of the Strasbourg decisions in preference to its own (relatively recent) decisions is one pre-eminently for it to determine. Our courts are required by section 2(1) of the Human Rights Act 1998 to do no more than "take into account" the relevant Strasbourg jurisprudence. In these circumstances, whether the Supreme Court decides to follow Strasbourg raises policy questions of some delicacy. I see no point in second guessing how the Supreme Court will approach the question."

Dialogue or conflict?

The stage may be set for a potential confrontation (or more "dialogue") between the Supreme Court and Strasbourg.  In the prisoner voting case - R (Chester) v Secretary of State for Justice (previous post) - the Supreme Court applied the "mirror principle" - as developed from Lord Bingham's speech in R v Special Adjudicator ex parte Ullah [2004] UKHL 26 - and followed  the E Ct HR decisions in  Hirst v UK (No.2) and Scoppola v Italy.

Views about the relationship between the UK Supreme Court and Strasbourg have been expressed extrajudicially by two of the serving Supreme Court Justices - Lady Hale and Lord Sumption.  Their lectures are discussed on this blog - Lady Hale ... Lord Sumption

The Secretary of State for Justice is the respondent in these appeals.  He is on record as saying that he wants the UK Supreme Court to be "Supreme" - Law and Lawyers 26th September 2013

Jurors and the internet

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The Law Commission has published a report - Juror misconduct and internet publications - (pdf 141 pages) - which includes a recommendation for a new criminal offence for jurors conducting prohibited research.   In total, the report contains 31 recommendations.

Clearly, a case must be decided on the basis of the evidence presented to the court and extraneous material should not be taken into account - The Guardian - Law Commission floats plans to stop jurors researching cases online.

In recent times, a number of jurors have been punished for contempt of court. 
As David Banks points out in an article in The Guardian - there were 17,786 jury trials in England and Wales in 2011.  Only a small number of jurors have been convicted of contempt of court where their conduct has involved using the internet.  Banks provides links to some examples including Joanne Fraill - see Attorney-General v Fraill and Sewart [2011] EWCA Crim 1570 (previous post 25th July 2011).

The The Guardian - Theodora Dallas case is of interest since it is proceeding to the European Court of Human Rights - BBC 5th December 2013.   Dallas argues that the judge had not been clear about using the internet or that doing so could be a criminal offence.  The Guardian's article on this case also notes: In a written witness statement to the judges, Dallas admitted that "sometimes my grasp of English is not that good".  That, in itself, raises a further and separate issue about the need for good understanding of the English language by jurors.

A study by UCL has indicated that 23% of jurors are unclear about the rules surrounding internet use during a trial.  However,  Professor Cheryl Thomas said - “These findings show that the vast majority of jurors understand and follow the rules on how jurors can use new media during trial but the message is not getting through and is confusing to a significant minority of jurors."

The Crown Court Benchbook (2010) Chapter 2 states:

The jury will be asked to return a unanimous verdict.  It is their collective view of the evidence which will alone determine their verdict.   They should discuss the evidence only when all 12 jurors are preset in the jury room.

For the same reason, jurors should not discuss the case with anyone, not least family and friends whose views the trust, when they are away from court, either face to face, or over the telephone, or over the internet via chat lines or, for example, Facebook or MySpace. If they were to do so they would risk disclosing information which is confidential to the jury.  Each juror owes a duty of confidentiality to the others, to the parties and to the court.  Furthermore, if they were to discuss the case with others they would risk consciously or not, bringing someone else's views to their consideration of the evidence  ........

If the case is one which has in the past or may during the trial attract media attention, the jury should remember that the report is only the author's version of past events.  It is the jury alone which hears the evidence upon which they must reach their verdict.  They should therefore take care to ensure that they do not allow such second-hand reporting or comment to influence their approach to the evidence.

We have a system of open justice in which the parties themselves decide what evidence to adduce at trial.  It is upon that evidence alone that the jury must reach their verdict.  They should not seek further information about, or relevant to, the case from any source outside court, including the internet (e.g. Google).  If they were to do so it would be unfair to the prosecution and the defence because neither would be aware of the research and its results and, therefore, neither would be aware of the research and its results and, therefore, would be unable to respond to it.

Human Rights Day ~ 65 years since the Universal Declaration of Human Rights

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10th December - Human Rights Day.  In a letter to The Telegraph, leaders of many 'civil society groups' have urged that Britain stands firm on the European Convention on Human Rights and the  Human Rights Act. Both of these were inspired by the Universal Declaration of Human Rights.  The British Institute of Human Rights Press Release calls for leaders to stand firm on human rights at home.

It was 65 years ago, on 10th December 1948 that the General Assembly of the United Nations adopted the Universal Declaration of Human Rights - 'recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.'

In the UK,
the notion of human rights enforceable at law against the State has come under increasing attack from politicians including, as Lady Hale noted in her recent speech at Warwick, Ministers in the present government.  A number of judges have entered the fray by delivering lectures which are critical of the stance adopted in some areas by the European Court of Human Rights.  This blog has looked at some of those speeches recently. 

Nelson Mandela Statue - Parliament Square	London

The present system of right protection within Council of Europe member States has done much to enhance rights across the 47 member States of the Council.  The UK is a founding member of the Council.  British lawyers were largely instrumental in drafting the European Convention on Human Rights.  The Human Rights Act 1998 has enabled convention rights to be asserted and enforced in our domestic courts and has given human rights a strong foothold in national jurisprudence.  There is much here to be proud of and we should be very careful about adopting changes.  Any change proposals should be thoroughly assessed to see where the resulting balance between individual and State is likely to be.  I my view, proposals should be rejected where there are not clearly going to be beneficial to the people.

Writing in The Guardian 10th December, former President of the European Court of Human Rights (Sir Nicolas Bratza) expresses his disappointments and hopes with regard to human rights protection in the UK.  "The fight to preserve the Human Rights Act and to keep the United Kingdom within the convention will be a hard one, but it is one worth winning. It is more than that. It is a fight that must be won."

Lady Hale on Human Rights Law

Thoughts on the Hamlyn Lecture by Lord Justice Laws

a look at Lord Judge's entry to the competititon

My thoughts (as a citizen) on Lord Sumption's Azlan Shah lecture - This post was reproduced by LEGAL BUSINESS on 10th December (Human Rights Day 2013)

Sumption and Laws - background notes

Human Rights Day over for 2013 but why isn't every day a Human Rights day? Has to be or we lose them!
— ObiterJ (@ObiterJ) December 11, 2013

Lady Hale on Human Rights law ~ her lecture at Warwick

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"The British used to be proud of their record on human rights. We are, after all, the land of the Magna Carta, signed by King John at Runnymede in 1215."


"The idea that the citizen might have rights which he could assert against the State was unknown to us"

"The puzzle was how to combine enforceable convention rights with the sovereignty of the UK Parliament"

" ... there are other politicians, some of them now in government, who have identified the Human Rights Act as the problem"  - Lady Hale. 

On 28th November, Lady Hale (Deputy  President of the Supreme Court) delivered the Warwick Law Lecture 2013 (PDF) entitled "What’s the point of human rights?"  The lecture looked at how the European Convention on Human Rights has been developed by decisions of the European Court of Human Rights (E Ct HR) and how the House of Lords and now the Supreme Court have responded to the challenges set by the Human Rights Act 1998.  Without doubt,
it is a very good overview of the system of rights protection in the UK at the present time.  The lecture is replete with examples from decided cases and, as such, well worthy of study by anyone interested in the law.

Lady Hale began by saying that "The British used to be proud of their record on human rights" and

Those cases established 3 principles:

•  a purposive rather than literal approach to interpretation of the language of the convention; 

•  that the convention is a living instrument (Tyrer v UK); 

•  the protected rights had to be 'practical and effective' as opposed to 'theoretical or illusory' (Airey v Ireland).  

Those principles led to substantive developments such as Article 2 (Right to Life) requiring a duty on States to investigate where State agencies might be implicated in a death.  States came to have positive duties to protect rights.

"The idea that the citizen might have rights which he could assert against the State was unknown to us."  "The puzzle was how to combine enforceable convention rights with the sovereignty of the UK Parliament."  The Human Rights Act 1998 was an ingenious solution but Lady Hale went on to discuss four tensions still present.  These relate to:

(a) Enforcement; 

(b) the phrase Take into account in HRA 98 section 2; 

(c) The words "read and give effect" in section 3 of the HRA 98; and 

(d) Declarations of Incompatibility under section 4 of the HRA 98.  

Enforcement of Convention Rights:

The HRA 98 s.6 makes it unlawful for a public authority to act incompatibly with convention rights BUT many rights involved balancing rights of individuals against the interests of other individuals , groups or the general public.  Lady Hale illustrates this by references to Manchester City Council v Peacock [2010] UKSC 45 and R (SB) v Governors of Denbigh High School [2006] UKHL 15.

Another difficulty is the extent to which rights against the State are enforceable against private entities.  This is illustrated by the development of the existing law of breach of confidence so as to balance Article 8 privacy rights of individuals with Article 10 freedom of speech for the media.  "Thus a newspaper should not have published a photograph of supermodel Naomi Campbell leaving a narcotics anonymous meeting" - Campbell v MGN Ltd [2004] UKHL 22.

A third difficulty is the standard of review for the human rights aspects of the actions of public authorities.  Lady Hale had not entertained doubts that the test in Associated Picture Houses v Wednesbury Council [1948] 1 KB 223 was NOT the right test.  In relation to human rights, the court had to decide for itself whether what had been done was, or was not, compatible.  Sometimes, it may be thought that a decision-maker was better placed than the court to weigh competing interests.  In R (Quila) v Home Secretary [2011] UKSC 45, Lord Brown had dissented on this basis.

Taking into account the Strasbourg jurisprudence:


QUILA also illustrates the problematic area of taking into account the matters mentioned in HRA 98 section 2 (including judgments of the E Ct HR).  Lady Hale pointed out that - "We do not have to follow it if we do not agree with it. However, as a common law country, we all love working with case law. Counsel have a tendency to treat Strasbourg case law as if it were the case law of our courts."  This was "odd" because Strasbourg case law is not binding precedent but statement of general principle leaving "plenty of wriggle room for the future."  Nevertheless, one of the principal objects of the HRA 98 was to try to prevent cases going to Strasbourg - [remember "Bringing Rights Home"] - and so the House of Lords decided that where there was a ‘clear and constant’ line of jurisprudence, especially at Grand Chamber level, we should generally follow it.  This principle was applied recently in the prisoner voting case of Chester v Secretary of State for Justice [2013] UKSC 63.  In Chester, the UKSC declined to accept the Attorney-General's invitation to decide against the E Ct HR Grand Chamber decisions in Hirst No.2 v UK (2006) 42 EHRR 41 and Scoppola v Italy (2013) 56 EHRR 19.  In Chester, it was also noted that Strasbourg decisions might not be followed if they were inconsistent with some fundamental substantive or procedural aspect of our law.

Clearly, when deciding Chester, the UKSC knew the stance already taken by Strasbourg in the prisoner voting cases.  However, Lady Hale next asked:

"But what about the cases where we do not know what Strasbourg would say or where, as the jurisprudence currently stands, he would lose? In Ullah, as is well-known, Lord Bingham


Lady Hale offered an illustration of this by reference to the control order legislation which came before the House of Lords in Home Secretary v AF (No 3) [2009] UKHL 28.

Declarations of Incompatibility:

The HRA 98 section 4 permits these but in deciding whether an Act (especially a post HRA98 Act) is incompatible raises the issue of respect for decisions of "our democratically elected representatives more acutely than deciding whether the actions of public authorities and government Ministers are incompatible."    Lady Hale then discusses two cases: Animal Defenders International v Secretary of State for Culture, Media and Sport [2008] UKHL 15 and R (Countryside Alliance) v Attorney General [2007] UKHL 52.

When there is a declaration of incompatibility the fast track amendment process may be used (HRA98 s10) or an Act passed to amend the law or the government might do nothing.  "Doing nothing" prompted some discussion of prisoner voting though Lady Hale noted that a Parliamentary committee is considering a draft bill.  [One option in the draft Bill is to keep the law as it is].  This led her to discuss what she describes as "my small rebellion against Strasbourg" in the Chester case.  In that case itself, her Ladyship had expressed little sympathy for Mr Chester and Mr McGeogh.  They were serving sentences for murder.  In the lecture she said:

"... usually, Strasbourg does not grant remedies in abstract, divorced from any consideration of how the rights of the individual before the court have actually been violated. They did so in the Hirst case, despite a strong dissent including the then President of the Court and his immediate successor. I thought that we should follow the normal and sensible practice of the Court and refuse to grant any of the remedies available to us, including a declaration of incompatibility, to an individual whose own rights had not been violated, other than by being subject to a law which might violate the rights of others."

There was, of course, no chance that Parliament would ever grant voting rights to ALL prisoners such as those convicted of murder.  [The UKSC also refused to make a declaration of incompatibility in Chester because one had already been made in the Scottish case of Smith v Scott [2007] CSIH 49].

The future?

Lady Hale referred to the opposition against the HRA 98.  The Home Secretary (Theresa May) and the Justice Secretary (Chris Grayling) have been particularly vocal about human rights matters.  (Their departmental responsibilities certainly engage human rights a great deal).  Lady Hale then referred to the Commission for a British Bill of Rights.  She concluded by saying that the range of options is not limited to doing nothing or having a bigger and better UK Bill of Rights.  "There are clearly some who are willing to contemplate repealing the Act and replacing it with nothing."  

"That would take us back to the constitutional position before the Act was passed, but it would raise all sorts of interesting questions about the effect of the decisions which have been made during the period while the Act was in force and whether the common law would now embrace many of the rights which were established during that time." 

Was there any fundamental right referred to in the Act which was not given reasonable protection in domestic law before 2000.  Lady Hale said: "I hope that I have illustrated how and why the answer is ‘yes’ and that there is indeed a point to the Human Rights Act."

The Act has proved itself to have immense value to our rights protection and we must beware of those siren voices arguing that something else may well be better and the strident voices pressing for a retreat from human rights protection with the result that power is balanced more in the State's favour.  Somewhere in between lies the voice of calm.  Let it prevail.