The Supreme Court ~ J (Children) [2013] UKSC 9 and Re B (A Child) [2013] UKSC 33

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A difficult area of family law is that relating to Public Law proceedings where the courts are empowered to make orders which could have the result that a child is removed from the natural family.  Various recent cases demonstrate all too well some of the profound difficulties involved.

Background:

The Children Act 1989 (CA89) sets the boundaries of State intervention in relation to parents and their children.  The courts are empowered, in defined situations, to issue various orders such as contact orders, residence orders, supervision orders and care orders.  Under the Adoption and Children Act 2002, children may be 'placed' for adoption (placement orders) and then adopted to suitable adoptive parents and this may (not necessarily always) break the child's ties with the natural family.  Given the draconian nature of some of these powers, it may surprise some readers to learn that 23 years after the CA89 came into force the courts are still deciding questions relating to the meaning of the Act, its application to particular cases and the role of the appellate courts in relation to decisions of those judges tasked with the day-to-day application of the law.


In February, the Supreme Court gave judgment in J (Children) [2013] UKSC 9 (Lord Hope, Lady Hale, Lords Clarke, Wilson and Sumption) and, in June, there was B (A Child) [2013] UKSC 33 (Lord Neuberger, Lady Hale, Lords Kerr, Clarke and Wilson).   Both cases raised questions relating to the 'significant harm' test in section 31 of the CA89.  This test - often described as the threshold - is applied to the facts of a particular case.  In the event that the facts raise sufficient concern to pass the test, some form of State intervention in the child's family will be permissible by law.

Significant harm:

Section 31(2) -

• "harm” means ill-treatment or the impairment of health or development including, for example,   impairment suffered from seeing or hearing the ill-treatment of another;
• “development” means physical, intellectual, emotional, social or behavioural development;
• “health” means physical or mental health; and
• “ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.

As Lady Hale stated [143] - 'This case raises some profound questions about the scope of courts’ powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm.'

At the heart of the case were questions about what is 'significant harm' under section 31 of the CA89; what is the role of Article 8 (Right to respect for private and family life) when a court makes a care order and what is the role of the appellate court hearing an appeal from a judge who has made a care order.

Significant harm - 

In B (A Child), Lady Hale discusses significant harm at some length - [paras 177 to 193].  At [187] Her Ladyship said:

'Added to the difficult question of identifying significant harm is the question of identifying the degree of likelihood that such harm will be suffered in the future which is necessary to take the case over the threshold. It was held, albeit strictly obiter, in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 that "likely" does not mean "probable" or "more likely than not". It means, in Lord Nicholls' well-known words, "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (at 585F). That standard has been adopted or approved in numerous later cases, including recently in this court in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9; [2013] 2 WLR 649...'

At [193] Lady Hale set out 5 helpful propositions for cases where the threshold is in dispute:

I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind:

(1) The court's task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.

(2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.

(3) Significant harm is harm which is "considerable, noteworthy or important". The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.

(4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.

(5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents' future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a "risk" is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649.

Proportionality -  (The European Convention Art 8)

Once the threshold is crossed, section 1(1) of the Children Act requires that the welfare of the child be the court's paramount consideration. In deciding what will best promote that welfare, the court is required to have regard to the "checklist" of factors in section 1(3). These include, at (g), the range of powers available to the court in the proceedings in question. By section 1(5), the court must not make any order unless it considers that doing so would be better for the child than making no order at all. The Act itself makes no mention of proportionality, but it was framed with the developing jurisprudence under article 8 of the European Convention on Human Rights very much in mind. Once the Human Rights Act 1998 came into force, not only the local authority, but also the courts as public authorities, came under a duty to act compatibly with the Convention rights.

Lady Hale considered the Strasbourg case law in this area and concluded at [198]:

Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34,

"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child."

The court held that Article 8 has no application when considering the significant harm test but it is applicable at subsequent stages - for example, in relation to the decision as to what form of intervention in family life is appropriate / proportionate.

The role of appellate courts -

A majority view (Lords Neuberger, Clarke and Wilson)

Lord Neuberger [at 80-96] analyses the role of appellate courts where there is a challenge to a care order.  It was held that the test to be applied by the appellate court is whether the decision of the lower court was 'wrong.'  The appellate court exercises a review role rather than undertaking the entire decision making process for itself.   So, when is a decision 'wrong'?

At [93-94] Lord Neuberger stated:

An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).  [My emphasis]


As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge's decision was not based on his assessment of the witnesses' reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge's decision was wrong, then I think that she should allow the appeal.

A minority view (Lady Hale and Lord Kerr)

The case is of some interest for the differing views of Lord Kerr and Lady Hale as to the role of appellate courts.

Lord Kerr at [119] - The decision by an appellate court on whether the making of an adoption order is proportionate cannot be determined by an approach which is geared solely to testing the adequacy of the trial judge's assessment of the proportionality issue. In my view this is impermissible because it removes the appellate court from the area of responsibility which it has to ensure that a Convention right is not infringed. Moreover, an approach that contemplates the endorsement by an appellate court of a decision on proportionality which it does not affirmatively find to be correct involves an abdication of the court's statutory duty as a public authority. Section 6 of the Human Rights Act makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right.

Lady Hale at [205] - ' ....  it seems to me that if the court has the duty to assess the proportionality of the decisions of a board of school governors, or of the Secretary of State, or of the immigration appellate authorities, it must a fortiori have the duty to assess the proportionality of the decisions of the trial judge in a care case. It must of course give due weight to the enormous benefit which he has had of reading and hearing all the evidence, of assessing not only the credibility and reliability of the witnesses but also their characters and personalities and the professionalism of the professional witnesses, of living and breathing the case over so many days and weeks. And it must be alive to the risks of being over-critical of the way in which a judge has expressed himself, bearing in mind the wise words of Lord Hoffmann in Biogen quoted earlier. But the court which makes the final decision is the public authority which is responsible for the invasion of Convention rights. I agree with Lord Kerr that it must decide for itself whether the order will be compatible with those rights. But I also agree that this will only make a difference in cases within Lord Neuberger's category (iv), where the appellate judge cannot say whether the trial judge was right or wrong.'

Subsequent cases in the Court of Appeal:

In some recent cases the effect of Re B has been considered by the Court of Appeal.  This is therefore a developing area of the law.  The judgments of McFarlane LJ in Re B-S [2013] EWCA Civ 813 (14th June) and  Re G [2013] EWCA Civ 965 (30th July) as well as Black LJ in Re P [2013] EWCA Civ 963 (30th July) are also of crucial interest in the manner in which Re B has affected the practical consideration of these major orders.  See also the Court of Appeal judgment in Re B-S (Children) [2013] EWCA Civ 1146 (17th September).

A good article on Re B (A Child) is at Family Law Week where Frank Feehan QC and Anna McKenna offer a table summarising the individual findings of the Supreme Court Justices - Re B (A Child): Who held what in the Supreme Court?   To open a PDF of the table click here .

Broadcasting the Court of Appeal

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Recording and Broadcasting of some proceedings in the Court of Appeal commences today - Sky News ~ Cameras to film court after campaign

Sky News will be broadcasting proceedings from inside the Court of Appeal from 10.30am - watch coverage on Sky 501, Virgin Media 602, Freesat 202, Freeview 82, Skynews.com and Sky News for iPad.

More detail of the scheme is in the Court of Appeal (Recording and Broadcasting) Order 2013 made by the Lord Chancellor under section 32(1) of the Crime and Courts Act 2013.  The Order applies to the recording and broadcasting of hearings in the Court of Appeal, in open court and before a full court.

Contrary
to what has been stated in some media reports, the Criminal Justice Act 1925 section 41 and the Contempt of Court Act 1981 section 9 remain in force.  What the Crime and Courts Act has done is to enable the Lord Chancellor (with the concurrence of the Lord Chief Justice) to make an Order disapplying those sections in certain  circumstances.   The court retains a right to reapply any disapplied provision in the interests of justice or in order that a person is not unduly prejudiced.

Ministry of Justice May 2012 - Proposals to allow the broadcasting, filming, and recording of selected court proceedings

Journalism.co.uk - 'Landmark' day as TV cameras enter Court of Appeal

This is a welcome development enabling the public to view proceedings in some of the most important cases before the courts.  Court of Appeal proceedings generally involve legal argument and the judges deliver their judgments on the law.  Witnesses are very much the exception rather than the rule.

Other links:

UK Human Rights blog - Adam Wagner - Court of Appeal Broadcasters must learn the Supreme Court lessons 

Justice Minister Shailesh Vara explains the innovation - Video via The Guardian 

Cameras in court are a threat to justice - Helena Kennedy QC - The Guardian 3rd November

Ministry of Justice 'poster' - in the bottom right hand image, there is a reference to the Supreme Court having allowed broadcasting since the court was created.  However, the image depicts the Court of Appeal. Slightly unfortunate but I don't think it detracts too much from the poster's message.

Press regulation ~ a legal challenge fails

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Today, the High Court rejected a challenge by the Press Standards Board of Finance (PressBof) which was aimed at preventing the Privy Council approving the Royal Charter of Self Regulation of the Press - The Independent 30th October. 

Richard Gordon QC, representing PressBof, told the court that PressBof had not been given notice of a period of openness in which it could have made representation in support of its charter and that it was not provided with information on the process and the criteria on which its document would be judged.  “This process, we say, was conspicuously unfair,” he told the court. “It’s almost Kafkaesque in terms of not knowing what the next step is intended to be.”



Nathalie Lieven QC, representing the Rt Hon Maria Miller MP, the Culture Secretary, said: “There simply is no arguable case here that could possibly justify the granting of an injunction.”

The detailed Statement of Facts and Grounds for the challenge are available - HERE.  (In itself, this is a useful document for those interested in the process of judicial review and the grounds on which a challenge can be based - e.g. duty to act fairly, right to be heard, duty of adequate consultation etc).

In essence, this challenge was based on the alleged unfairness of the process followed by politicians in rejecting the draft charter drawn up by the press itself.

Here is the petition for a charter issue by PressBof at the end of April and, for its rejection, see The Guardian 8th October.

The question of whether there is a royal prerogative power to regulate the press was not before the court and, for all I know, may never be.  Possibly, PressBof could not sensibly raise such an argument having petitioned the Privy Council itself for a Charter.  Nevertheless, it was interesting to speculate on the possibility that someone might put a challenge on that basis - 26th October - The Press ~ The Royal Charter ~ (again)!

Additional Reading:

Inforrm's Blog - Court rejects PressBoF's application for injunction 

11 King's Bench Walk

Addendum 31st October:

The Independent - Queen sets seal on cross-party politicians' charter for press regulation

Addendum 7th November:

An appeal has been lodged - The Guardian 7th November

Sharon Shoesmith ~ reported to have received £600,000 compensation ~ has anything been learned?

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Sharon Shoesmith was Director of Children Services in Haringey at the time of the death of Baby P.   It is reported that she has settled her claim against Haringey and is to receive some £600,000 in compensation - Daily Mail 29th October.  This follows on from a Court of Appeal (Civil Division) decision in May 2011 discussed at Sharon Shoesmith wins her appeal (27th May 2011).and, in greater detail, at Accountability is not synonymous with Heads must Roll (30th May 2011)

In the Court of Appeal, Maurice Kay LJ said - 'it is our task to adjudicate upon the application and fairness of procedures adopted by public authorities when legitimate causes for concern arise, as they plainly did in this case.  Whatever her shortcomings may have been (and, I repeat, I cannot say), she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated.'



In my post of 30th May 2011 I noted - 'In the present financial climate, the government would do well to ensure that Child Protection Services are fully resourced and, if the turnover of social work staff still exists, to take whatever steps are practicable to prevent it.  Continuity in case management is as important as objective oversight of the work of individual social workers.  Both are essential ingredients.'

Regrettably, since 2011, many (if not all) local authorities have had to cut back on social service provision due to financial restrictions and there appears to be considerable turnover of staff.

In May 2011, I also noted - 'It seems that the present government is concerned to restrict judicial review.  Here we are in dangerous territory.  Surely, the most important constitutional point is that Ministers must act in accordance with law.  Even at the time of the Baby-P case, the Secretary of State had far reaching statutory powers but the problem was the manner in which he exercised them.  He failed to ensure that Shoesmith was given an adequate opportunity to make representations about his proposed courses of action.  Here is the fundamental unfairness which it is the purpose of judicial review to rectify.'

It almost goes without saying that the Ministry of Justice has recently imposed restrictions on applications for judicial review and more is likely.  Their latest consultation closes on 1st November - Judicial Review - further proposals - Sir Stephen Sedley (8th September 2013). 

I will leave it to you to decide whether anything has been truly learned from this tragic situation.

Earlier this month, the Parole Board decided that Baby Peter's mother could be released from imprisonment - BBC News London 9th October.

Family Law ~ a torrent of recent cases

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There has been a torrent of recent family law cases.  Here is a compilation of some of the recent judgments. It is not a comprehensive list.  Even for the family law specialist, this is a formidable amount of reading.  There is also the View from the President's Chambers (Issue No. 7) and the new Family Court Guide.


Supreme Court:

J (Children) [2013] UKSC 9 -  The Children Act section 31(2) threshold is an important measure to protect a family from unwarranted intrusion while at the same time protecting children from harm. The wording of Section 31(2) has been the subject of six appeals to the House of Lords and Supreme Court. Those cases have consistently held that a prediction of future harm has to be founded on proven facts: suspicions or possibilities are not enough. Such facts have to be proved on the simple balance of probabilities.  See Family Law Week.

B (A Child) [2013] UKSC 33. - a challenge to a care order made with a view to adoption.  Very important with regard to application of Article 8 of the European Convention on Human Rights and the role of appellate courts when an order is challenged on the basis of proportionality.   The making of an order which removed a child from its natural family was a measure of last resort, only to be adopted where it is "necessary" and when "nothing else will do".   Analysis of the case via Family Law Week.

A (Children) [2013] UKSC 60 - whether the High Court has jurisdiction to order the "return" to this country of a small child who has never lived or even been here, on the basis either that he is habitually resident here or that he has British nationality.   Analysis of the case via Family Law Week.



Court of Appeal (Civil Division):

Re B-S [2013] EWCA Civ 813- care plans for adoption - analysis of pros and cons required

Re P [2013] EWCA Civ 963

G (A Child) [2013] EWCA Civ 965- the impact of the UK Supreme Court decision in B (A Child) on the appeal process in care proceedings

W (A Child) and H (Children) [2013] EWCA Civ 1177 - application of Re B-S

S (A child) [2013] EWCA Civ 1254 - appeal against a finding of sexual assault

C (A Child) [2013] EWCA Civ1257

F (A Child) [2013] EWCA Civ 1277 - a second appeal against the making of a placement order in relation to L (aged 4)

High Court (Family Division):

ML (Use of Skype Technology) [2013] EWHC 2091 (Fam) - Peter Jackson J - use of Skype to receive evidence from remote parts of the world

Re Al-Hilli (Children) [2013[ EWHC 2190 (Fam) - Baker J - media presence in proceedings

NN and ZZ [2013] EWHC 2261 (Fam) - Peter Jackson J - process for gathering evidence from non-English speaking witnesses

IA (A Child) [2013] EWHC 2499 (Fam) [2013] EWHC 2499 (Fam) - Pauffley J - experts to answer specific questions - over-inclusive reports not acceptable

DF And GF (Children - Placement Order Or Special Guardianship Order), Re [2013] EWHC 2607 (Fam) (22 August 2013) - Pauffley J - whether a placement order or a special guardianship order should be made and level of contact between the youngest child, her mother and older sister.  

J (A Child), Re [2013] EWHC 2694 (Fam) (05 September 2013) - Sir James Munby - questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system, particularly when, as here, their complaints are about the care system. The case also raises important questions about how the court should adapt its practice to the realities of the internet, and in particular social media.

MM (A Child : Long Term Fostering / Placement With Family Members : Wishes and Feelings), Re [2013] EWHC 2697 (Fam) (22 August 2013)

AW (A Child: Application to Revoke Placement Order: Leave to Oppose Adoption) [2013] EWHC 2967 (Fam) (16 August 2013) 

Lancashire County Council v R[2013] EWHC 3064 (Fam) - Mostyn J - fact finding judgment relating to injuries sustained by baby N - held to be accidental. 

Re AK and MK (Fact finding)(Physical Injuries) [2013] EWHC 3158 (Fam)
- Pauffley J - fact finding hearing relating to injuries to baby girl 

G (A Child: Intractable Contact) [2013] EWHC B16 (Fam) (25 September 2013)

My notes:

Here are some notes on some of the above from my own notebook ...

NN and ZZ - Peter Jackson J considered how evidence should be taken from non English speaking witnesses. ML (Skype) the same judge allowed use of Skype to gather evidence from a witness in Colombia - the witness gave evidence for an hour at cost £150 whereas a full ISD link would have cost £1200.

Practitioners must note - Pauffley J in IA a case concerning reports relating to injuries sustained by child. Critical remarks about over-inclusive and expensive reports. (I hope this judgment will not deter an expert from drawing attention to something noticed but not asked about).

Also note Re B-S where Court of Appeal expressed frustration at the lack of analysis of the pros and cons of an adoptive placement. 

Re AK and MK (Pauffley J) see paras 19-23 re burden and standard of proof in care proceedings where non accidental injury is alleged.  (A neat summary).  Judge made a 'global finding' that the injuries were inflicted and not accidental.

Lancashire County Council v R (Mostyn J) - para 8 for summary of legal principles applicable for a case NOT involving a pool of possible perpetrators of injury. Interesting comments from judge re expert opinion changing over time especially re 'subdural bleeding' - miscarriages of justice perpetrated in reliance on now discredited orthodoxy that presence of subdural bleeding in a recently born baby was strongly indicative of abuse (unless birth had been particularly traumatic).

The Re B (A child) UKSC case will need separate analysis + Court of Appeal decisions which have already considered and applied Re B.

The Press ~ The Royal Charter ~ (again)!

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I make no apology for returning to the question of the Royal Charter on Self Regulation of the Press.  This was discussed in my earlier post of 14th October - We by Our Prerogative Royal will, ordain and declare as follows

That post concluded by noting: 'Perhaps the Charter will somehow be challenged before the courts.  Unless that happens, the existence of a prerogative power to regulate the press is likely to become accepted given that the Charter itself effectively claims a prerogative right to do so by using the words:


It might then be wondered what might be ordained and declared at some time in the unknown future when some further need for State Control over some activity is perceived.'

The House of Lords has now registered concern - Daily Mail 26th October



'Controversial plans to impose a Royal Charter on the Press next week are ‘inconsistent with our democratic traditions’, senior peers warned last night.  Lord Inglewood, chairman of the House of Lords communications committee, said Parliament had been ‘bypassed’ by the Government in its rush to use a Royal Charter to regulate the Press.  The former Tory culture minister said his committee was alarmed that peers have not been given the chance to consider the proposals which would set up a new regulatory framework for the Press in the wake of the Leveson inquiry.'

Whether or not the Lords have been allowed to debate the proposed Charter is a matter which cannot be questioned in the courts since the Bill of Rights 1688 prevents challenge to Parliamentary proceedings:

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

The Daily Mail article also states: 'Industry bodies are to apply to the High Court for judicial review. They will argue a decision by the secretive Privy Council, to reject an industry-backed charter for self-regulation in favour of one written by politicians should be quashed.'

Further concern is expressed in the Daily Mail's article 26th October - Privy Council must not be above the law.   This article states: 'The newspaper industry is seeking judicial review of this decision, but has been told by the Treasury Solicitor that the Privy Council, acting under Royal Prerogative, cannot be subject to legal challenge.'

I have not had the privilege of seeing any such legal advice.  However, does a claim to be acting under 'Royal Prerogative' powers prevent a judicial review?  The short answer is NO.  That was the answer given by the House of Lords in the GCHQ case in 1983 - (judgment).   Their Lordships cited, with approval, the earlier authorities such as Attorney-General v De Keyser's Royal Hotel [1920] AC 508  and Burmah Oil Co Ltd v Lord Advocate 1964 SC (HL) 117.  

Lord Fraser of Tullybelton said: 'As De Keyser's case shows the courts will inquire into whether a particular prerogative power exists or not, and if it does exist, into its extent.'  

Lord Scarman said:

My Lords, I would wish to add a few, very few, words on the reviewability of the exercise of the royal prerogative. Like my noble and learned friend Lord Diplock, I believe that the law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power. Without usurping the role of legal historian, for which I claim no special qualification, I would observe that the royal prerogative has always been regarded as part of the common law, and that Sir Edward Coke had no doubt that it was subject to the common law: Case of Prohibitions del Roy (1607), 12 Co. Rep. 63 and Case of Proclamations (1611) 12 Co Rep 74. In the latter case he declared, at p.76, that "the King hath no prerogative, but that which the law of the land allows him."

Lord Diplock said: ' .. I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review'.

Of course, on one view, the Royal Charter merely sets up the 'Recognition Body' and the use of Royal Charters to incorporate bodies is commonplace and of long antiquity.  That would be, I submit, an excessively narrow view of what this Royal Charter purports to do.  In reality, it presumes the existence of a prerogative power to regulate the press and the charter sets out in some detail the considerable powers of the Recognition Body.  This goes beyond the traditional use of Royal Charters (e.g. charters of incorporation for the Welsh Livery Guild, Worshipful Company of Hackney Carriage Drivers etc) and strays into territory which should, constitutionally, be occupied by Parliament.  The Recognition Body's powers in relation to regulators will be such that there is bound to be a marked, and very possibly negative, impact on the freedom of the press.  The existence of such a prerogative power is questionable and it is right that the courts be asked to declare whether such power exists and, if so, what is its scope.

At the end of the day, in a constitutional democracy, the position should be that "the politicians have no prerogative, but that which the law of the land allows them." 

R v Gul - UK Supreme Court - Observations

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'Terrorism' has proved very difficult to define and there is no internationally agreed definition.  For the purposes of law in the United Kingdom, the Terrorism Act 2000 section 1 gives the following definition:


Mohammed Gul was charged under the Terrorism Act 2006 section 2 (Dissemination of terrorist publications).  The police found videos on his computer which had been uploaded to various websites including Youtube.  These videos included ones that showed (i) attacks by members of Al-Qaeda, the Taliban, and other proscribed groups on military targets in Chechnya, and on the Coalition forces in Iraq and in Afghanistan, (ii) the use of improvised explosive devices ("IEDs") against Coalition forces, (iii) excerpts from "martyrdom videos", and (iv) clips of attacks on civilians, including the 9/11 attack on New York. These videos were accompanied by commentaries praising the bravery, and martyrdom, of those carrying out the attacks, and encouraging others to emulate them.

The case for the prosecution was that each of these videos constituted "a terrorist publication" within section 2(3), which the appellant had "distribute[d] or circulate[d]" within section 2(2)(a), and consequently he had committed an offence by virtue of section 2(1), of the 2006 Act. The appellant's principal defence was that, although he did not agree with the targeting of and attacks on civilians, he believed that the use of force shown in the other videos was justified as it was being employed in self-defence by people resisting the invasion of their country.

The Court of Appeal certified a point of general public importance, namely:

"Does the definition of terrorism in section 1 of the Terrorism Act 2000 operate so as to include within its scope any or all military attacks by a non-state armed group against any or all state or inter-governmental organisation armed forces in the context of a non-international armed conflict?"

The Supreme Court, having examined Mr Gul's case from the point of view of both domestic law [26-41] and international law [42-58], answered YES to the certified question.  Mr Gul's appeal was therefore dismissed.

R v Gul (Appellant) [2013] UKSC 64

• Judgment (PDF)
• Judgment via Bailii:
• Press summary (PDF)

Observations:

The case is of particular interest because of the court's observations about the Terrorism Act 2000.

The Act has the very broad definition of terrorism (cited above) and combines this with prosecutorial discretion under section 117.   See also the 2006 Act section 19.   The Supreme Court had this to say [36-37]

1. The Crown's reliance on prosecutorial discretion is intrinsically unattractive, as it amounts to saying that the legislature, whose primary duty is to make the law, and to do so in public, has in effect delegated to an appointee of the executive, albeit a respected and independent lawyer, the decision whether an activity should be treated as criminal for the purposes of prosecution. Such a statutory device, unless deployed very rarely indeed and only when there is no alternative, risks undermining the rule of law. It involves Parliament abdicating a significant part of its legislative function to an unelected DPP, or to the Attorney General, who, though he is accountable to Parliament, does not make open, democratically accountable decisions in the same way as Parliament. Further, such a device leaves citizens unclear as to whether or not their actions or projected actions are liable to be treated by the prosecution authorities as effectively innocent or criminal - in this case seriously criminal.


2. Given that the consent requirement in section 117 is focused on the decision whether to consent to a prosecution, this approach to the construction of the 2000 Act has two further undesirable consequences. First, the lawfulness of executive acts such as detention, search, interrogation and arrest could be questioned only very rarely indeed in relation to any actual or suspected involvement in actual or projected acts involving "terrorism", in circumstances where there would be no conceivable prospect of such involvement being prosecuted. Secondly, the fact that an actual or projected activity technically involves "terrorism" means that, as a matter of law, that activity will be criminal under the provisions of the 2000 and 2006 Acts, long before, and indeed quite irrespective of whether, any question of prosecution arises.

There may be a tension here between paragraph 36 and the attitude hitherto adopted to some other offences requiring consent.  In relation to the offence of Assisting Suicide (Suicide Act 1961) the House of Lords required the DPP to issue guidance regarding when prosecutions might be appropriate - R(Purdy) v DPP [2009] UKHL 45.

The court made further observations at [60-64] - (my emphasis)

1. First, we revert to the concern about the width of the definition of "terrorism", as discussed in paras 28-29 and 33-37 above. In his first report, Mr Anderson QC made the point that "the current law allows members of any nationalist or separatist group to be turned into terrorists by virtue of their participation in a lawful armed conflict, however great the provocation and however odious the regime which they have attacked". He went on to say that "other definitions of terrorism choose to exclude activities sanctioned by international law from the reach of terrorist activity", citing the Canadian and South African Criminal Codes as examples. In his second report, Mr Anderson mentioned the "potential application of the Terrorism Acts even to UK forces engaged in conflicts overseas", and referred to the fact that a recent Australian report "recommend[ed] that Australian law be changed so as to provide that the relevant parts of the Criminal Code, as in Canada, do not apply to acts committed by parties regulated by the law of armed conflict."


2. While acknowledging that the issue is ultimately one for Parliament, we should record our view that the concerns and suggestions about the width of the statutory definition of terrorism which Mr Anderson has identified in his two reports merit serious consideration. Any legislative narrowing of the definition of "terrorism", with its concomitant reduction in the need for the exercise of discretion under section 117 of the 2000 Act, is to be welcomed, provided that it is consistent with the public protection to which the legislation is directed.


3. The second general point is that the wide definition of "terrorism" does not only give rise to concerns in relation to the very broad prosecutorial discretion bestowed by the 2000 and 2006 Acts, as discussed in paras 36-37 above. The two Acts also grant substantial intrusive powers to the police and to immigration officers, including stop and search, which depend upon what appears to be a very broad discretion on their part. While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of "terrorism" is so wide means that such powers are probably of even more concern than the prosecutorial powers to which the Acts give rise.


4. Thus, under Schedule 7 to the 2000 Act, the power to stop, question and detain in port and at borders is left to the examining officer.  The power is not subject to any controls. Indeed, the officer is not even required to have grounds for suspecting that the person concerned falls within section 40(1) of the 2000 Act (i.e.that he has "committed an offence", or he "is or has been concerned in the commission, preparation or instigation of acts of terrorism"), or even that any offence has been or may be committed, before commencing an examination to see whether the person falls within that subsection.   On this appeal, we are not, of course, directly concerned with that issue in this case.  But detention of the kind provided for in the Schedule represents the possibility of serious invasions of personal liberty. 

The observations regarding powers given to the Police and immigration officers will have particular resonance in relation to the David Miranda case.  Mr Miranda was detained under Schedule 7 of the Terrorism Act 2000.

Dialogue?

The word dialogue is in vogue with regard to the relationship between the Supreme Court and the European Court of Human Rights.  It is interesting to wonder whether we are now seeing the beginning of dialogue between the Supreme Court and Parliament.  The Gul judgment could have been just as effective and much shorter had the various observations about the legislation been omitted.  However, the Supreme Court has opted to express concerns though it has also been careful to emphasise that it is a matter for Parliament.

Press Regulation ~ View of Journalists

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London Evening Standard 23rd October 

Media heavyweights have branded the government’s proposed royal charter for press regulation a “medieval piece of nonsense.”

Speaking at a London Press Club debate last night Guardian editor-in-chief Alan Rusbridger, Daily Telegraph writer Andrew Gilligan and biographer Tom Bower slammed the plans, saying they posed a real threat to press freedom and the future of investigative journalism.  A draft plan to regulate the press includes powers to impose million-pound fines on UK publishers, demand apologies, and set up a new low-fee complaints system.

It is interesting that the Press Club see a number of threats to investigative journalism - see London Press Club - Can Investigative Journalism survive?

The Royal Charter
was discussed at Law and Lawyers 14th October 2013 - We,  by Our Prerogative Royal... will, ordain and declare as follows ...

The idea of a Royal Charter emerged from within political circles and not from the Leveson Inquiry.  When Sir Brian Leveson appeared before the Culture, Media and Sport Committee he made it clear that the idea of a Royal Charter had never been canvassed at his inquiry.  On this, see Joshua Rozenberg's article in the Law Society Gazette 21st October - Press Regulation: we're stuck, please help.

Uncorrected transcript of evidence to the Culture, Media and Sport Committee by Sir Brian Leveson 10th October 2013.

May a 'whole life' sentence be imposed for murder?

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According to The Telegraph 21st October, Mr Justice Sweeney has ruled that a whole life tariff may not be imposed at the time of sentencing an individual for murder.  The newspaper reported:

Thoughts on the Supreme Court's decision in Chester and McGeogh

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The long term legal importance of a case can sometimes have little to do with the actual question which was before the court at the time.  An example of this may prove to be the Supreme Court's judgment in the recent 'prisoner voting' case:

R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent)
McGeogh (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland)

• Judgment (PDF)
• Judgment via Bailii 
• Press summary (PDF)

The case itself concerned two appeals by serving prisoners - (serving sentences for murder) - who had found themselves disenfranchised in elections as a result of the statutory prohibition on serving prisoners voting.
Their appeals had little merit because, on ANY reading of the jurisprudence of the European Court of Human Rights (E Ct HR), individuals convicted of such heinous crimes could be banned from voting - see, for example, Scoppola v Italy (No.3) (2012) 56 EHRR 34 .  The E Ct HR has allowed States a 'margin of appreciation' in this area and, whatever the exact boundaries of that margin, a voting ban on prisoners serving lengthy sentences of imprisonment for very serious offending is well within the margin.

The longer term interest and importance of the case may prove to lie in relation to the position of the Supreme Court of the UK vis-a-vis the European Court of Human Rights at Strasbourg and in relation to the protection of human rights more generally.  The leading judgment was given by Lord Mance with other concurring judgments by Lady Hale, Lord Clarke and Lord Sumption.  Lords Hope, Kerr and Hughes concurred in the overall decision.  Mr Chester based his case (in part) on Protocol 1 Article 3 to the European Convention and also on European Union Law.  Mr McGeogh based his case entirely on EU law.  This post concentrates on the European Convention aspects of the case.

European Union Law:

The Supreme Court held that, so far as EU law was concerned, it was clear that EU law did not grant prisoners a right to vote.  The provisions on voting contained in the EU Treaties focus on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU.   The EU law aspect of this case takes up many paragraphs but the Supreme court's decision on this point is unsurprising. 

The Supreme Court also held that no reference to the Court of Justice of the EU was necessary since the law was clear.

Lord Clarke's judgment is much less critical of the Strasbourg decisions than Lord Sumption though he agreed that, in these circumstances, the Strasbourg decisions had to be followed.  Lord Clarke pointed out that whatever scheme for prisoner voting is adopted, there will be an element of arbitrariness about it.

Lady Hale had no sympathy at all for the appellants.  Whilst Her Ladyship clearly saw the arbitrariness inherent in the UK's position [see paras 92 to 98], she could not envisage any law which the UK Parliament might eventually enact as granting either of them the right to vote.   Lady Hale considered the possibility of a declaration of incompatibility under section 4(2) of the Human Rights Act and noted that s4(2) seemed to leave open the possibility of a declaration in abstracto, irrespective of whether the provision in question is incompatible with the rights of the individual litigant.   Her Ladyship said that -

'There may be occasions when that would be appropriate. But in my view the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible. Any other approach is to invite a multitude of unmeritorious claims. It is principally for that reason that I would decline to make a declaration of incompatibility on the application of either Mr Chester or (had he made one) Mr McGeoch. Indeed, in my view the courts should not entertain such claims. It is otherwise, of course, in borderline cases.'

Lady Hale's judgment - (probably wisely) - contains no attempt to define when a declaration in abstracto might be appropriate or what might be a 'borderline case.'  (Note: One possibility might be where a pressure group is permitted to raise argument?).

A further interesting dictum appears in Lady Hale's judgment at [90]:  'If there is a Constitution, or a Bill of Rights, or even a Human Rights Act, which guarantees equal treatment in the enjoyment of its fundamental rights, including the right to vote, it would be the task of the courts, as guardians of those rights, to declare the unjustified exclusion unconstitutional.'

Of course, the UK does not have a formal constitution or a Bill of Rights of the type envisaged here by Lady Hale but, if it ever does, here is a possible marker as to a future role of the courts.  An argument by former Attorney-General Lord Goldmsith QC that it is somehow undemocratic for the courts to adopt such a stance was dealt with at [88].

Lord Mance

Lord Mance summarised his conclusions at [4]. 

(A) Human Rights Act

In respect of Chester's claim under the Human Rights Act, which only relates to elections to the European and United Kingdom Parliaments (para 2), I would decline the Attorney General's invitation to this Court not to apply the principles in Hirst v United Kingdom (No 2) (2005) 42 EHRR 41 ("Hirst (No 2)") and Scoppola v Italy (No 3) (2013) 56 EHRR 19 (paras 34-35) ("Scoppola"), but also decline to make any further declaration of incompatibility with the Convention rights (paras 39 - 42).

Lord Mance makes it clear that the UK court has to take into account decisions of Strasbourg but he added at [27]:

'In relation to authority consisting of one or more simple Chamber decisions, dialogue with Strasbourg by national courts, including the Supreme Court, has proved valuable in recent years. The process enables national courts to express their concerns and, in an appropriate case such as R v Horncastle, to refuse to follow Strasbourg case-law in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg. But there are limits to this process, particularly where the matter has been already to a Grand Chamber once or, even more so, as in this case, twice. It would have then to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for this Court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level.'

As to whether the court should issue a further declaration of incompatibility, Lord Mance said [39]: 

'The incompatibility of RPA section 3 with A3P1 was recognised by the Registration Appeal Court in Smith v Scott 2007 SC 345, which made a declaration of incompatibility. That declaration was properly made in the case of a convicted person sentenced to five years' imprisonment for being concerned with supply of controlled drugs. It entitled the Government to use the remedial order provisions contained in section 10 of the Human Rights Act. The Government decided not to do this. The issue is now however before the United Kingdom Parliament and under active consideration in the light of the decisions in Hirst (No 2), Greens and Scoppola. Further, it is clear from Greens (para 18 above) and the Attorney General accepts that EPEA section 8 is, in relation to European Parliamentary elections, as incompatible with A3P1 as RPA section 3 is, in relation to United Kingdom Parliamentary elections. A declaration is a discretionary remedy, both generally and under the Human Rights Act 1998, section 4 (4). There is in these circumstances no point in making any further declaration of incompatibility.'

The importance of the case:

The actual importance of the case in the longer term may come about because the judgments have brought together a number of threads relating to the position of the Supreme Court and human rights protection:

1. The European Convention on Human Rights is an international treaty binding the UK in international law.  It has effect in domestic law by virtue of the Human Rights Act 1998 which requires domestic courts to 'take into account' any judgment or decision of the European Court of Human Rights.

2. The court is not bound to follow every decision of the E Ct HR.  In relation to authority consisting of one or more simple Chamber decisions, dialogue with Strasbourg by national courts, including the Supreme Court, has proved valuable in recent years. The process enables national courts to express their concerns and, in an appropriate case such as R v Horncastle, to refuse to follow Strasbourg case-law in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg.

3. The court will usually follow a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle.

4. Where a matter has been to the Grand Chamber at least once,  it would have have to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for [the Supreme Court] to contemplate an outright refusal to follow such authority.

5. A declaration of incompatibility under the HRA 98 is a discretionary remedy and the court will not issue one where it is pointless as where, for example, a declaration already exists.

Questions / Problems:

Some questions will undoubtedly remain such as: What is a fundamental principle of our law?  That question may yet have to be answered should some Strasbourg decision present itself which is considered to go against such a national principle.

The Justices argue that it is an 'extreme suggestion' to say that the disenfranchisement of prisoners could be regarded as a fundamental feature of the laws of the United Kingdom.  However, the court's judgment fails to identify any clear rationale for the disenfranchisement of prisoners.   The Grand Chamber has acknowledged that disenfranchisement of convicted serving prisoners "may be considered to pursue the aims of preventing crime and enhancing civic responsibility and respect for the rule of law" but, as some of the judgments in the UK Supreme Court indicate, permitting prisoners to vote might actually achieve the same aims.  Furthermore, Lord Sumption [126] stated -  'The disenfranchisement of convicted prisoners is not and never has been a form of outlawry, or "civil death" (the phrase sometimes used to describe the current state of the law on prisoners' voting rights).' If the starting point of the argument was that the right to vote is fundamental in a democracy then one might expect disenfranchisement to be exceptionally rare and strictly justified.

It is difficult at this time to forecast whether this case will prove to be beneficial to human rights protection or not.  It may be that the rejection of the Attorney-General's 'forceful submissions' (per Lord Mance) will play into the hands of those who seek to distance the UK from Strasbourg. On the contrary, it may be that the decision to follow the clear line of Strasbourg decisions will set a marker for other areas of dispute and enhance protection for rights.

Meanwhile, 'back at the ranch', the Draft Voting Eligibility (Prisoners) Bill is undergoing pre-legislative scrutiny by a joint committee of both House of Parliament.  The Bill may be seen here.   The Government put forward three options - (a) a ban for prisoners sentenced to 4 years or more; (b) ban for prisoners sentenced to more than 6 months and (c) ban for all convicted prisoners – a restatement of the existing ban.  It was noted that - 'There will no doubt be other possible options for the Joint Committee to consider.'  Option (c) would inevitably lead the UK down the path of deliberate non-compliance with the convention.

In due course, we will doubtless return to this issue into which the present government has put so much political capital with the Prime Minister stating that the idea of prisoners voting made him ‘physically ill’ and with the Attorney-General appearing in person before the Supreme Court to put forward a fresh challenge  to the principles endorsed by the European Court of Human Rights in Hirst (No 2) and Scoppola.

A perhaps over-lengthy analysis - but thank you for reading it.  Obiter J  ~ 21st October 2013.

Other analyses:

The following are well worth reading:

Head of Legal blog - 16th October 2013

UK Human Rights blog - 20th October 2013

UK Constitutional Law Group - 21st October 2013