Pre-Easter roundup of legal news - (2)

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Following on from the previous post, further legal news:

1.  Major parts of Legal Aid Sentencing and Punishment of Offenders Act 2012 come in to force on 1 April 2013 including the severe cuts to civil legal aid provision enacted by LASPO Part 1.

Pre-Easter Roundup of legal news - (1)

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Sir Sydney Kentridge QC

There is a massive amount of legal activity at the present time.  Here is a roundup of some it.

1. The highly controversial Justice and Security Bill has cleared the House of Lords.  All that remains is for the Bill to receive Royal Assent.  Implementation will follow and bring about the extension of closed material procedures to civil proceedings.  The Bill enhances Parliamentary supervision over the security services.

2.  New laws for missing persons - Ministry of Justice.  The Presumption of Death Act 2013 ... means relatives can apply for a certificate declaring someone as presumed dead.  The certificate will be equivalent to a death certificate and means those left behind can deal with the legal and financial affairs of the missing person – for example enabling them to stop direct debits and other outgoings.  The changes apply to England and Wales - bringing them into line with Scotland and Northern Ireland.

3.  Crown Court at Manchester - Sentencing remarks of His Honour Judge Martin Rudland in R v Brewer are available - Judiciary R v Brewer and see the earlier post of 11th February.



4.  The judgment of the Court of Appeal (Civil Division) in Othman v Secretary of State for the Home Department has been published.  Interestingly, the government briefed three Queen's Counsel and a Junior to handle this case.  At paragraphs 58 and 59, the Master of the Rolls stated:

"Torture is universally abhorred as an evil. A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture. That principle is accepted by the Secretary of State and is not in doubt. That is the principle which SIAC had to apply in the present case in the light of all the evidence that it heard and read. This included evidence as to what had happened and what there was a real risk would happen if Mr Othman faced a retrial on the very serious charges that he faces. SIAC found that there was a real risk that evidence obtained by torture would be admitted at the retrial and that, as a consequence, there was a real risk that he would be subject to a flagrant denial of justice.

In order to succeed in this appeal, the Secretary of State has to show that SIAC erred in law. It is not sufficient to persuade us that we would have reached a different conclusion on the facts and Mr Eadie rightly recognised the difficulty of such an exercise. The Secretary of State accepts that SIAC directed itself properly as to the general legal test to apply. Her case that SIAC nevertheless erred in law is based on a detailed examination of a careful and comprehensive judgment. As we have stated at paras 5 and 6 above, criticisms of this kind of a decision by a specialist tribunal are particularly difficult to sustain. For the reasons that we have given, we are satisfied that SIAC did not commit any legal errors."

5.  'Self-representing litigants' are OUT and 'Litigants in Person' are back - see the Master of the Rolls' guidance  The term ‘Litigant in Person’ (LiP) should continue to be the sole term used to describe individuals who exercise their right to conduct legal proceedings on their own behalf. This Guidance applies to all proceedings in all criminal, civil and family courts.

6.  There are scathing judicial comments in Wright v Wright Supplies Ltd about the problems arising in relation to litigants in person.  Sir Alan Ward said - "We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid."

7.  Loss of control as a partial defence to murder has again been considered by the Court of Appeal (Criminal Division) in R v Dawes, Hatter and Bowyer   The legislation - ss.54 and 55 of the Coroners and Justice Act 2009 - is hardly a model of clarity and was considered previously by the Court of Appeal in R v Clinton - see post of 18th January 2012.

8.  The Lord Chief Justice has issued guidance relating to Victim Personal Statements (and, in murder cases, Family Impact Statements)  in  R v Perkins, Bennett and Hall

9.  Bar and Cab rank rule - The Bar Council, which represents barristers in England and Wales, has published a staunch defence of the cab rank rule. The paper, written at the Bar Council's request by Sir Sydney Kentridge QC, responds to criticisms made in a Legal Services Board (LSB) report on the future of the cab rank rule.  Also have a look at Bar Standards Board - Removal of the 'cab rank' rule a major threart to justice

10.  Cruel and Unusual Punishment - Mark George QC considers the death penalty in the USA -  here

11.  Family Law - a great roundup of developments at Family Lore 26th March

12.  UCL Faculty of Laws pays tribute to the late Professor Ronald Dworkin   Ronald Dworkin is widely accepted as the most important and most controversial Anglo-American jurist of the past forty years.

Prof. Ronald Dworkin

13. Sixteen FACTS about QASA - Legal Half Hour blog

Someone accused of murder may not get a QC & yet Theresa May uses our money to have 3 for a one day case.
— John Cooper (@John_Cooper_QC) March 27, 2013

14  ... and if, like me, you have some concern about how government tinkers with constitutional reform then see

HC Pol + Constl Reform Cmte on the case for a UK-wide constitutional conventionparliament.uk/documents/comm…
— Graham Gee (@GDSGee) March 28, 2013

Regulation of the Press - (2)

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The earlier post Regulation of the Press (1) noted the importance of freedom of expression in a democratic society.  Following on from the Leveson Report, a model for press regulation of a Royal Charter on Press Regulation plus statutory elements emerged.


Another post - The path to censorship of the media - contains links to various materials which were collated at the time when  information was emerging as to how it was proposed to regulate the press.



What we now have is:

• (Draft) Royal Charter on Press Regulation - text of the charter

• An addition to the Enterprise and Regulatory Reform Bill stating: "Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body's Charter or dissolve the body unless any requirements included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met."

•  Additions to the Crime and Courts Bill 

 The Charter:



Essentially, the Charter creates a RECOGNITION PANEL  which is to be a 'body corporate.'  The purpose of the Panel (Art 3) is to 'carry on activities relating to the recognition of Regulators in accordance with the terms of this Charter.'  The functions of the Panel are to be found in Art. 4 - (a) determine applications for recognition from Regulators, (b) review whether a Regulator which has been granted recognition shall continue to be recognised, (c) withdrawing recognition from a Regulator where the Recognition Panel is satisfied that the Regulator ceases to be entitled to recognition and (d) reporting on any success or failure of the recognition system.

Art 9 deals with amendment of the Charter. Art 9(2) states - "Before any proposal (made by any person) to add to, supplement, vary or omit (in whole or in part) a provision of this Charter (“proposed change”) can take effect a draft of the proposed change must have been laid before Parliament, and approved by a resolution of each House. For this purpose “approved” means that at least two thirds of the members of the House in question who vote on the motion do so in support of it."

Note here that the 2/3 refers to those members who actually bother to vote!

The addition to the Enterprise and Regulatory Reform Bill is designed to tie down by statute this process of amendment and to prevent the Privy Council altering the Charter without Parliamentary approval.  However, it would be possible for some future Parliament to repeal the 2/3 requirement.

The Scheme for Recognition of Regulators is set out in Schedule 2 of the Charter and the Recognition criteria are in Schedule 3.

Crime and Courts Bill:

This is where perhaps the more controversial aspects are to be found: Exemplary Damages and Costs.

In specified situations, a court could order exemplary damages against a 'relevant publisher.'  However, such an award may not be made against the defendant in respect of a claim if the defendant was a member of an approved regulator at the material time. - (there are some exceptions to this).  The definition of 'relevant publisher' is therefore highly important and it is very problematic.

Jobseekers ~ Bill to reverse Court of Appeal decision is being fast-tracked

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The government (Department of Work and Pensions) has introduced the Jobseekers (Back to Work Schemes) Bill  ('the Bill').  The Explanatory notes are helpful in explaining what lies behind this Bill - see Explanatory Notes.  The notes have been prepared by the Department for Work and Pensions to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

In R (on the application of Reilly and Wilson) vs Secretary of State for Work and Pensions [2013] EWCA Civ 66 the appellants - Caitlin Reilly and Jamieson Wilson - challenged the lawfulness of the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 ("the ESE Regulations"). Their challenge was successful.  The effect of the Court's judgment is that the Department for Work and Pensions had no right to impose a sanction on claimants who had failed to meet their requirements.  The Bill has been introduced to reverse the effects of the Court of Appeal's decision and it is being 'fast-tracked' through Parliament. 


Overview of the Bill:

Reaction:

The imposition of 'sanctions' on individuals is likely to result in enormous hardship to those who have, often through no fault of their own, come on hard times through loss of employment.  On this, see (for example) The Guardian The jobseeker's story: I'm not proud to say that I've gone begging
and see the video at You're money is stopped, you go into freefall

On 21st March, The Guardian looked at the Bill in The Jobseeker's Bill: a shameful retroactive stitch-up.  The article begins:  'Last Thursday, the justice secretary, Chris Grayling, lauded the role of the legal sector in driving the UK's economic growth. "British law has an unrivalled reputation in the world," he trumpeted , "a decision from a UK court carries a global guarantee of impartiality, integrity and enforceability.  At the same time as Grayling was delivering his speech ...., his colleagues in Westminster were publishing the jobseekers (back to work schemes) bill, a piece of emergency legislation whose sole purpose is to make one particular court decision just that little bit less enforceable.'

The Labour Opposition in Parliament states that it finds the bill 'difficult' but they argue that their failure to oppose the bill is 'the right call' - Labour List  This article, by Liam Byrne MP, is well worth reading in full.   Byrne points out that the Bill restores to the Department of Work and Pensions its legal power to sanction anyone who gets Jobseeker’s Allowance if they did not take steps to find work. It’s a power that government has had since 1911.

That is so but there seems to be a new zeal with which, under pressure to achieve targets, DWP staff are applying sanctions - Government admits Jobcentres set targets to take away benefits.  Citizens Advice Bureau argue that the only target should be to get it right.

Fast-tracking:

The Bill is being fast-tracked through Parliament.  The explanatory notes set out the government's reasons for this.  The following is extracted from those notes:

The Department will be seeking permission to appeal the Court of Appeal’s judgment. If permission to appeal to the Supreme Court is not granted, or the Supreme Court finds against the Department, primary legislation would be needed to ensure that the Government does not have to make repayments to (and can impose sanctions where decisions have been stayed, on) all claimants who failed to take part in programmes comprised in the ESE Regulations. Fast-tracking the Bill is necessary in order to provide certainty and thus safeguard the Government’s position.
 

Fast-tracking is necessary to safeguard against the risk of having to repay sanctions to claimants, and of losing the ability to impose sanctions where decisions have been stockpiled, in the event of permission to appeal being refused and to provide certainty.

The legislation does not change the underlying policy. It restores the policy intention of the ESE Regulations and the intended effectiveness of the notices given under them. There is therefore no need for an external consultation to be considered.

The Bill does not include a sunset clause because the legislation is retrospective.


Are we seeing here a further example of lack of humanity at the heart of the present government or is this a necessary step to ensure that the ability to impose sanctions is maintained?  In appropriate cases, the sanctions policy is no doubt required so to that extent the government's actions are necessary.  However, there needs to be some recognition of the fact that it is now much harder for almost any person out of work to gain further employment and some factors (e.g. age) continue to definitely count against the individual even if such discrimination is, strictly speaking, unlawful.  In the daily application of regulations, a recognition of - 'There but for the grace of God, go I' - would not be amiss.

Note: The Bill discussed in  this post became the Jobseekers (Back to Work Schemes) Act 2013

The Fortnum and Mason protest ~ Aggravated trespass

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On 26th March 2011, around 130 UK Uncut supporters protested against tax avoidance on the part of large companies by occupying Fortnum and Mason's shop in London.  The actions of the protesters were criticised by some politicians.  Boris Johnson stated on BBC Question Time that the protesters had 'stormed' the building, 'terrified staff' and 'upset customers' and had caused 'tens of thousands of pounds' of damage.  A police Chief inspector persuaded the protesters to leave, via a specified route.  The protesters were arrested.  At subsequent trials, some were acquitted whilst others were convicted. 

Videos of Boris Johnson on BBC Question Time and the Chief Inspector talking to protesters may be viewed at UK Uncut


In Bauer and others v DPP  [2013] EWHC 634 (Admin) - Moses LJ and Kenneth Parker J - the court heard an 'appeal by way of case stated' from the decision of District Judge (Magistrates' Courts) Snow (Westminster Magistrates' Court) to convict ten individuals of aggravated trespass contrary to the Criminal Justice and Public Order Act 1994 section 68 .   This form of appeal is not a rehearing of the case but it is an opportunity for the High Court to consider the relevant law and its application in the Magistrates' Court.  The definition of the offence is:-


(1)  A person commits the offence of aggravated trespass if he trespasses on land [in the open air] and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land [in the open air] , does there anything which is intended by him to have the effect - (a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity, (b) of obstructing that activity, or (c) of disrupting that activity.

The offence is triable summarily and carries a maximum penalty of 3 months imprisonment or a Level 4 fine or both.

The words 'in the open air' were included in this section when it was first enacted but they were removed by the Anti-social Behaviour Act 2003 s.59   The explanatory notes to the 2003 Act state that section 59 amends sections 68 and 69 of the Criminal Justice and Public Order Act 1994 to extend provisions relating to the offence of aggravated trespass to cover trespass in buildings, as well as in the open air.   Land is defined in the Interpretation Act 1978 so as to include buildings and also see  DPP v Chivers [2010] EWHC 1814 (Admin).

Clearly, the offence may not be committed unless the individual is a trespasser.  Trespass is a civil law concept and is not, in itself, without difficulties.  Some other offences, notably burglary, are defined by reference to trespass.  When a shop is open to customers, individuals enter on a licence and the shop is entitled to either refuse entry or to withdraw the licence.  Essentially, access to the shop is permitted to individuals for the purpose of purchasing goods.  Those who go beyond the limits of the licence will be trespassers.  The aggravated trespass offence is aimed at individuals who intend to interfere, in one of the stated ways, with lawful activity on the land.  There are three stated ways in section 68(1)(a) - intimidation, (b) - obstruction and (c) - disruption.

The Bauer case is interesting for its discussion of what is required to prove the offence.  It is not sufficient merely to prove a trespass.  There has to be some distinct and overt act beyond that and the act must be accompanied by the intention to intimidate, obstruct or disrupt.   An individual's presence as part of a continuing occupation may amount to such a further act.  There is no requirement to prove that any damage occurred: Peppersharp v DPP [2012] EWHC 474 (Admin). 

The judgment also discusses the approach to interpreting words such as 'intimidate.'  They idea of looking up ordinary words in a dictionary and substituting some other word was deprecated.  On the facts of the case, the court found that there was ample evidence to infer that anyone who chose to remain in the store after it was closed, as part of the demonstration, had an intention to intimidate.  The intention of the appellants could be inferred from their participation in the continuing mass demonstration.

The court emphasised that all were convicted as PRINCIPAL offenders.  It was wrong to consider the case on the basis that some of those taking part were perpetrators or principals whilst others were guilty of secondary participation as accessories.  Of course, it is not an offence to be merely present when others commit an offence but, in this instance, those who remained were committing the conduct element of the offence. 

The judgment highlights the conduct of some of the protesters (para 6):

"The scene inside the store was chaotic. Protesters were shouting and screaming at a very high volume. There were chants of 'if you don't pay your taxes, shut you down', 'Whose shop, our shop', 'Occupy, occupy. Pay your taxes'. Megaphones were used. The old Piccadilly door was controlled by protesters. Some protesters were masked. Many carried placards and were handing out flyers, other protesters hung banners. Drums were beaten, horns sounded and bagpipes were played. Tents were erected. Volleyball was played across the displays. Some goods were stolen, some were damaged and others swept on to the floor. Tape was wrapped around the outside of the store and around displays, the tape had the words 'Closed by UK Uncut' printed across it. Some of the staff were subject to chants of 'pay your taxes' being directed at them and had their photographs taken."

Regarding the ten appellants, the court noted:

"Beyond presence, there is no evidence of the behaviour of any of these defendants inside the store except; Mr Coleman was seen to use a loudhailer in the Atrium. Mr Jones carried a furled up banner into the store. Mr Lichmann picked an umbrella up from the floor and opened it. He played with a beach ball. Mr Pope carried a placard into the store. Mr Ramsay used a loud hailer. Mr Storrar played the bagpipes."

Referring to Articles 10 and 11 of the European Convention on Human Rights, the court noted (at 38, 39):

1. .... it will maintain and protect the rights enshrined in Articles 10 and 11, in the context of peaceful protests, to focus on the question whether those participating in a demonstration are themselves guilty of the conduct element of the crime of aggravated trespass. If the prosecution cannot prove that their presence as part of the demonstration itself constituted that criminal conduct then it should not fall back on the far more difficult proposition that whilst their presence was itself peaceful it encouraged others to commit the criminal offence of aggravated trespass...... .


2. In the instant appeals the District Judge, towards the end of his judgment, asked whether the prosecution breached the defendants' Articles 10 and 11 rights. Once he had found that they were guilty of aggravated trespass there could be no question of a breach of those rights. He had, as he was entitled to, concluded that they were guilty of aggravated trespass. Since no one suggests that s.68 is itself contrary to either Article 10 or 11, there was no room for any further question or discussion. No one can or could suggest that the state was not entitled, for the purpose of preventing disorder or crime, from preventing aggravated trespass as defined in s.68(1).

This case makes the individual's criminal liability likely to depend on the overall conduct of the group since continuing presence as part of a demonstration is capable of being the conduct element of the offence and the required intention may also be inferred from presence.  Perhaps rather more should be required if a case is to be established on the basis of intimidation which, as the court itself said, is a forceful word indicating the notion of  putting someone in fear.

Note for practitioners - see the court's comments regarding FACTS in relation  to 'case stated appeals' and also regarding costs.

Child care proceedings ~ hearing the views of the child

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P-S (Children)(Care Proceedings: Evidence) [2013] EWCA Civ 223 is an interesting case - Full judgment and  ICLR Report.  It concerned care proceedings in which a 15 year old child (M) wished to attend court to give evidence in support of his case to return to the care of his Mother.  M felt that the strength of his feelings were not fully understood and he wanted an opportunity to talk to the judge about his views.  The judge (Her Honour Judge Parry) declined and M (and his younger brother A) were placed into care. 

At para 22, Sir Alan Ward delivering the Court of Appeal's judgment, asked:  "If an important decision was to be taken on the way you had to live your life, would you regard it as a rank injustice if you could not put your views before the person who has to take that decision?   Of course you would.  Would it make any difference if you were a child of sufficient maturity and understanding?   I expect you would answer, "Such a child should have the same right to be heard".  Would you feel the same
sense of injustice if your views were adequately placed before the decision-maker but you are not allowed to give evidence on oath, be examined and cross-examined as necessary?   I imagine you would say, "It all depends on the particular circumstances".  That, in essence, is what Judge Parry said. The question for us is whether that instinctive answer is justified on the present state of the law."

At para 36 - " ... it should now be declared that the child does have .... a right to be heard in the proceedings. It is apparent .... that the right to be heard does not specify how the child is to be heard .... " and, later - ".... whilst the child must be listened to, there is nothing ... which entitles the child to give evidence to the judge. .... a child has no right to give evidence."

In this case, the care judge and the Court of Appeal considered that there was ample information as to M's wishes and feelings. 

At para 42 Sir Alan Ward said - "Article 6 requires a fair and public hearing. Judges must, in my judgment, be very cautious when they see children in the absence of the other parties. I would encourage them to do so to explain the judgment that the judge is about to give or has just or recently given in order to reassure the child that his wishes have been given proper weight and respect by the court. If the judge cannot accede to the child's wishes the judge can take that useful opportunity to explain why. But that meeting should not be used to take evidence from the child because if that evidence is given in the absence of the other parties, they could legitimately claim that their right to a fair trial had been invaded because a part of it was not undertaken in public. Circumstances will vary infinitely and there can be no hard and fast rules but judges must be alive to the possibility that the adults who have been excluded from the meeting may feel that injustice has been done to them. As in all these cases, sensitivity is a vital attribute for the family judge."

Was there a rebuttable presumption that the mature child's wishes should prevail?  NO was the Court of Appeal's answer.  The welfare checklist  - Children Act 1989 section 1(3) - sets out a range of factors to be taken into account, only one of which is the wishes and feelings of the child having regard to his age and understanding. The weight to be given to that factor will vary from case to case. It may be a very weighty factor, it may even be the determinative factor in a particular case but s. 1(3) simply cannot be construed so as to read into it some hierarchy of weight or presumptions of precedence over other factors. Each case is fact sensitive.

This was a case where care orders were inevitable. Sir Alan Ward said - An appeal against the care order is utterly hopeless .... The bleak fact is that this was a feckless mother who put her own needs before those of her children. Having found the threshold crossed, the judge was left with no alternative but to make the care order.

The decision does not rule out children either being permitted to talk with the judge or even give evidence where it is considered appropriate in all the circumstances of a particular case.

Guidelines for judges meeting children who are subject to family proceedings - April 2010 (pdf)

Guidelines in relation to children giving evidence in family proceedings - June 2011 (pdf)

In February, MPs expressed a view that children in care cases should be given the chance to meet judges - (Marilyn Stowe blog).   Marilyn Stowe - a specialist family law solicitor - wrote:

I do like the group’s recommendation that judges should – as a matter of routine – ask to meet children involved in family law cases. and talk to the youngsters about how they see their situation and what they would like to happen.  It’s a nice image and could only do good. But will it happen? I’m afraid I doubt it. With many courts already struggling with ballooning case loads and even the ‘aspirational’ 26 week timetable for family law cases proposed by Mr Justice Ryder, few will welcome further demands on their time, however much good such demands might do.

Wales:  

An important point is made at para 35 of the Court of Appeal's judgment.   

The U.N. Convention on the Rights of the Child has not been made a part of English law but the duty of the court is nonetheless to have regard to it when considering matters relating to it. The position may now be different in Wales because the United Nations Convention on the Rights of the Child has become part of Welsh legislation by reason of the Rights of Children and Young Persons Measure (Wales) 2011 which came into force in May 2012. The Measure will shape all future policy decisions taken by Welsh ministers. 

See earlier post on Rights of Children 20th December 2011

Supreme Court this week

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An interesting week in the Supreme Court .  The court (with reluctance) held that it may sit in closed session to consider a 'closed judgment' of the lower court and the next day did so.  Also, there was an interesting decision on defences under section 1(3) of the Protection from Harassment Act 1997.

Secrecy:  On 19th March, in relation to Bank Mellat v Her Majesty's Treasury, the Supreme Court issued a statement:

(Quote) The substantive appeal in this case relates to whether directions made by the Treasury under Schedule 7 of the Counter-Terrorism Act 2008 were in breach of, inter alia, the rules of natural justice, and/or Article 6 ECHR, and/or the procedural obligation in A1P1 ECHR.

There has been considerable interest in a preliminary matter, covered by oral submissions to the Court today, on whether a ‘closed judgment’ from the lower courts could in principle be considered by the Supreme Court, and if so, whether the Justices in this instance wish to do so.

The following message has been sent to the parties in this appeal this evening:


For reasons, to be given later, the Court has decided that it has jurisdiction to consider the closed judgment of Mitting J, which it would only do if, during the conduct of the substantive appeal in open court, it was persuaded that it was necessary to do for the purpose of fairly disposing of the appeal. On the basis of the submissions it has so far received, the Court is not convinced that it is so necessary.

In anticipation of such a possibility, counsel for the respondent are requested to send to the special advocates [who act for the appellant] by 10.00 am tomorrow, Wednesday 20th March 2013, a written statement, setting out those parts of the closed judgment on which reliance may be placed, and summarising the nature of such reliance.

The Court has also asked that the special advocates attend the remainder of the hearing. (End Quote)

The Guardian - Supreme Court rules it can examine secret judgments by lower courts.  

Despite being unconvinced of the need for a closed session, it transpired that on Thursday 21st March the court actually held a closed session - The Guardian - UK Supreme Court goes into secret session for first time

See UK Supreme Court blog 21st March - Supreme Court elaborates on its decision to consider a closed judgment, if necessary   In a further statement in open court, the Supreme Court said - "We have reluctantly decided that we cannot consider the closed judgment without having a closed hearing, as otherwise the contents of the closed judgment would be revealed to the public, including Bank Mellat and its representatives."  This decision is a 6 to 3 majority. 

No doubt in due course when we have completed the closed hearing and Mr Brindle [for Bank Mellat] has made his closing submissions, and we in due course consider the matter and give our judgment, we will have quite a few things to say about this unhappy procedure 

Closed hearings are permissible, by statutory authority, in certain instances.  One example is in the Special Immigrations Appeals Commission.  It would be very odd if the Supreme Court could not hear an appeal because the lower court had issued a closed judgment.  However, there appears to be no statutory authority exactly on the point.  The full  reasoning of their Lordships is awaited with considerable interest.  The Justice and Security Bill - currently before Parliament - will make 'closed material procedures' available in civil cases before the High Court and appellate courts.

UK Human Rights blog - Historical first as Supreme Court boots Iranian bank out of secret hearing
- " ... the Government, which is being sued, gets to stay in court whilst the person doing the suing – and their lawyers – have to leave. The judges then hear security sensitive evidence which is potentially central to the case."

Supreme Court - statements relating to the Bank Mellat case

Harassment:  On 20th March, the court handed down judgment in Hayes v Willoughby [2013] UKSC 17.  Mr Willoughby was the appellant and his appeal was dismissed by a majority of 4 to 1.  The dissenting justice was Lord Reed.

Willoughby (W) had been an employee of a company operated by Hayes (H).  W carried out a campaign against H's management of the companies.  The campaign involved sending letters to the Official Receiver, the Police and the Department of Trade and Industry.  Those bodies investigated and found nothing to substantiate W's allegations but W continued and made intrusions into H's private life.

The Protection from Harassment Act 1997 makes harassment (defined section 1) both an offence (section 2) and offers a civil remedy (section 3).  Under section 1(3) it is a defence for a person to show (a) that it was pursued for the purpose of preventing or detecting a crime; (b) that it was pursued under any enactment or rule of law, or (c) that in the particular circumstances, the pursuit of the course of conduct was reasonable.

At trial, the judge found that W's conduct was harassment but that section 1(3)(a) applied because W genuinely believed in his allegations.  H's appeal was allowed by the Court of Appeal which held that  (1) only the purpose of the conduct not the purpose of the alleged harasser was relevant, and in this case it was not reasonably or rationally connected to the prevention of crime; and (2) the prevention of crime had to be the sole purpose of the alleged harasser, and the intrusions on Mr Hayes’s privacy were not related to that purpose.

Of those findings, (2) would be relatively easy to deal with provided that prevention of crime was the alleged harasser's main (or principal or dominant) purpose even if not the sole purpose.  The Supreme Court had this view - (para 17 of Lord Sumption's judgment).    Lord Sumption said:

Mr Allen QC (who appeared for Mr Hayes) did not attempt to defend this particular ground of the Court of Appeal’s decision and in my view it was indefensible. A person ’s purposes are almost always to some extent mixed, and the ordinary principle is that the relevant purpose is the dominant one. 

The first finding was more difficult.  The Court of Appeal had introduced a problematic distinction between purpose of the conduct and the purpose of the alleged harasser.  They had also introduced the words 'reasonably or rationally.'

The Supreme Court held that there was no distinction between the purpose of the conduct and the purpose of the alleged harasser as such acts have no purpose other than that of their perpetrator.

For the Supreme Court majority, the issue was by what standard was the person's  purpose to be assessed?  A wholly objective test was not consistent with the wording or purpose of the Act.  A test of reasonableness was not included in section 1(3)(a) but it was in other sections and to import reasonableness into 1(3)(a) would make 1(3)(c) otiose.  Furthermore, a wholly subjective test was problematic

Those who claim to be acting for the purpose of preventing or detecting crime may, at a purely subjective level, entertain views about what acts are crimes and what steps are calculated to prevent or detect them which have no relation to reality. Mere existence of belief, however absurd, in the mind of the harasser that he is detecting or preventing a crime, cannot justify him persisting in a course of conduct which the law recognises as oppressive. Some control mechanism is therefore required, even if it falls short of what is objectively reasonable.

The majority found the control mechanism in the concept of 'rationality.'  

Reasonableness is an external, objective standard applied to the outcome of a person’s thoughts or intentions. A test of rationality only applies a minimum objective standard to the relevant person’s mental processes. It imports a notion of good faith in requiring some rational connection between the evidence and the ostensible reasons for the decision, and an absence of arbitrariness, capriciousness or reasoning so outrageous in its defiance of logical as to be perverse. If the alleged harasser has rationally applied his mind to the material suggesting criminality and formed the view that the conduct said to constitute harassment was appropriate for its detection or prevention, the court will not test his conclusions by reference to what view a hypothetical reasonable man in his position would have formed. If he has not done so but proceeds anyway, he acts irrationally. He will not have a relevant purpose and there will be no causal connection between his purpose and the conduct constituting harassment. Such a test would in any event apply to public authorities. It is not a demanding test, and it is hard to imagine that Parliament could have intended anything less.

On this basis, the court found that the continuance of W's conduct after June 2007 was irrational.  

He was no longer guided by any assessment of evidence, nor was there a rational connection between his supposed purpose and acts. By persisting in pressing his allegations on the Official Receiver and other investigatory bodies long after they refused to deal with him, he was acting in way that was incapable of furthering the alleged purpose.


As Lord Reed (dissenting) identified, difficulty with this may well arise at criminal trials where juries have to be directed on the law.  For Lord Reed, reasonableness was not required by section 1(3)(a) but he rejected the idea that Parliament intended to impose a rationality requirement.  He gave 3 reasons for this:

(1) Parliament did not provide for any rationality test.  The purpose for which a course of conduct is pursued is ... ordinarily ascertained by reference to the intention of the person who pursues it. To introduce a requirement of objective rationality requires the court to read in words which Parliament did not use.  Later, Lord Reed said:  "I cannot readily bring to mind any example, in any context, of a statutory requirement not of reasonableness but of rationality, the latter being understood as conceptually distinct from the former."

(2) A statute should not be construed as extending criminal liability beyond the limits which Parliament itself enacted.  "It is trite that a statute is not normally to be construed as extending criminal liability beyond the limits which Parliament itself made clear in its enactment."

(3) Criminal liability would turn on the subtle distinction between irrationality and unreasonableness, which could create particular difficulties in giving clear directions to juries.   " ... bearing in mind ... that section 1(3)(a) and the other provisions to like effect limit the scope of criminal offences, some of which are triable on indictment, I would be slow to infer that criminal liability was intended to turn upon the subtle distinction between what is unreasonable and what is irrational."

"Are defendants to be convicted on the basis that their conduct has overstepped the boundary separating the unreasonable from the irrational? Are juries to be required to determine where that boundary lies? It may be that appropriate directions can be devised by judges, although I do not underestimate the difficulty of devising directions which accurately reflect Lord Sumption’s analysis."

and later:

In any event, a meaningful jury trial requires not merely that the jury is given a legally accurate direction, but that it is one which they can make sense of in practice and apply with confidence to the evidence they have heard. I am not convinced that Parliament can have intended that a jury should be expected to understand and apply the sophisticated distinctions which Lord Sumption seeks to draw.

There is much to be said for Lord Reed's dissent which recognises the difficulties which the introduction into criminal law of subtle distinctions bring about.  The law has to be as straightforward as possible and must be readily understandable by juries and magistrates.  Above all, rationality is not within the wording of the stature itself.  Had Parliament wished to legislate for this then it could have done so.  Of course, Hayes v Willoughby arose from an action (under section 3 of the 1997 Act) for damages for harassment and for an injunction to restrain its continuance.  It was not a criminal case but the defences in section 1 apply to the criminal offence (section 2) and also to actions for a civil remedy under section 3.

Protection from Harassment Act 1997

Regulation of the Press - (1)

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John Milton, Areopagitica (1644) wrote - "Give me the liberty to know, to utter, and to argue freely according to conscience, above all^"
It should be a trite observation that a free press is a vital component of a democratic, liberal nation.  Lord Bingham stated - "The proper functioning of a modern participatory democracy requires the media be free, active, professional and enquiring" - McCartan Turkington Breen v Times Newspapers [2000] 4 All ER 913, 922.

The European Court of Human Rights (E Ct HR) has consistently recognised
the need for a free press - e.g. Lingens v Austria (1986) 8 EHRR 407 where the court referred to the watchdog role of reporting on the activities of those in power.  The E Ct HR has also observed that, given the duties and responsibilities clause in Article 10 of the European Convention on Human Rights (E Conv HR), the press must not overstep certain boundaries such as those set by the criminal law.  The press has to act in good faith, on an accurate factual basis and provide information in accordance with the ethics of journalism - see Stoll v Switzerland (2008) 47 EHRR 59.  Therefore, we do not have a totally unfettered press but we have a free one and it is one which ought to remain fearless in pursuit of truth which those in power may wish to hide.

Following on from the Leveson Report there seemed to be a period of relative calm whilst the politicians, perhaps occupied with weighty matters such as the Justice and Security Bill,  mulled over what to do.  Some draft Bills were written (e.g. by the Labour Party) and the idea of a Royal Charter emerged.  Suddenly, a practically all night meeting took place and a scheme was cobbled together involving a Royal Charter plus bits and pieces of legislation.  New clauses to amend certain bills were pushed in front of Parliament and nodded through the Commons with rapidity and little debate - (Parliament record at column 698).  The result is not what Leveson recommended though, in fairness, it has some similarities - (Law and Lawyers - Guarding the guardians - the Leveson report and the Rubicon - 3rd December 2012). 

In passing, it is worth noting that the position of the devolved administrations in the UK - particularly Scotland - seem to have been overlooked.  This is discussed by I. Jamieson on the UK Constitutional Law blog. - 'The Leveson Report, the Royal Charter and the Scottish Parliament'  and by Aileen McHarg - The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson.  In Scotland, press regulation has been recently examined by an 'expert group'- see their report via the Scottish government website.

At the time of writing this post the full ramifications of the regulatory scheme are unclear.  I propose to try to examine these in a subsequent post.  The previous post on this blog contains a variety of pertinent material.  At this stage, let us note what Maria Miller MP (Culture Minister) said in the debate:

"The Prime Minister said to the House on the day the report was published that he had serious misgivings about statutory press regulation. He—I agreed with him—was determined to find a better way of establishing the recognition body that would oversee the tough self-regulatory body that Lord Justice Leveson envisaged. That is what our royal charter does.

Our proposals will provide the toughest system of regulation that this country has ever seen. The system will protect the public and ensure that the freedom of the press is not undermined. Alongside our proposals, we will include a three-line clause that reinforces the language within the charter and says that it cannot be changed without a two-thirds majority in both Houses. The clause ensures that, for generations to come, Ministers cannot interfere with the new system without explicit and extensive support from both Houses.

We have achieved all of that without needing to set out a system of press regulation in legislation—hence, our proposals are not statutory underpinning. The three-line clause applies to all royal charters of a particular nature from this point onwards. It is simply a safeguard.

We are in the House to debate amendments that will put in place a new, tough set of incentives for publishers. There are two such incentives—the first relates to the award of exemplary damages, and the second relates to the award of costs in litigation involving relevant publishers. The package forms a crucial part of the new regulatory regime, providing strong new incentives to relevant press publishers to join the press regulator. When they choose to join the press regulator, they will receive a series of benefits on costs and damages. However, those that choose not to join the regulator will be exposed to the tough new regime, which includes payment, in most cases, of the costs of people who bring claims in the courts against publishers on civil media laws, regardless of whether those people win or lose; and exposure to a new exemplary damages regime—we are introducing a new punitive damages regime for breaches of those media laws for those who do not sign up to the regulator."

The reference to 'generations to come' is nonsense.  Parliament could simply repeal the legislation requiring a 2/3 majority and, let it be noted, it is a 2/3 majority of those who actually bother to vote!

The so-called 'incentives' are provisions designed to maintain an illusion of choice.  The vast majority of publishers will feel forced to sign up given the possible consequences if they do not.