Brexit

Maugham v Advocate General for Scotland (Part 1: Interim Orders)

Maugham v Advocate General for Scotland is the latest in a long line of Brexit related litigation that has been ongoing in the Scottish courts (as well as courts elsewhere in the UK). Lord Pentland was today considering a motion in the Petition by Jolyon Maugham QC for interim suspension and interdict. In particular, the Petitioner was seeking interim orders in terms of paragraphs (i) and (ii) of the Prayer of the Petition; which are in the following terms:

“(i) to suspend ad interim the purported agreement which is said by the United Kingdom government to have been concluded between it and the European Union and the United Kingdom government, on the basis that this agreement provides for Northern Ireland to form part of a separate customs territory to Great Britain; and

(ii) for interdict ad interim against Ministers of the Crown in right of the United Kingdom including the Prime Minster (and anybody acting on their behalf or at their request) from entering into arrangements under which Northern Ireland is to form part of a separate customs territory to Great Britain”.

Essentially, the Petitioner was asking the Court to make temporary orders pending the full consideration of the Petition. This Petition is aimed at the latest version of the Withdrawal agreement negotiated between the United Kingdom and the European Union. That Withdrawal agreement is due to be considered by Parliament tomorrow (Saturday 19th October 2019).

Before the court can grant interim orders of this kind; it requires to be satisfied of the following: (1) that the party seeking the orders has a prima facie case (that is whether, on the face of it, does the person asking for the interim orders have a case which would entitle them to the full order); and (2) whether the balance of convenience favours making the order. If the court is satisfied as to both of these issues then it will make the interim orders sought by the party.

This morning, the Lord Ordinary (Lord Pentland) heard argument from Senior Counsel (O’Neill QC) for the Petitioner and Senior Counsel (Moynihan QC) for the Respondent (the Advocate General for Scotland – who represents the United Kingdom Government in the Scottish courts) in respect of whether these orders should be granted or not. As is usual with these sorts of matters, a decision quickly followed and the Lord Ordinary’s Opinion was published shortly after 5pm this evening. Lord Pentland refused the interim orders sought by the Petitioner and made the usual orders for advertisement, intimation and Answers.

In refusing the motion for interim orders, the Lord Ordinary questioned the competency of the Petition, noting that “[t]he orders sought would unquestionably interfere to a major extent with the proposed proceedings in Parliament” [22]. Proceedings in Parliament are subject of privilege and cannot be challenged or interfered with by a court. This will be a significant issue that the Petitioner will have to overcome if he continues with his Petition (although, given that Parliament will now debate and likely vote on the new Withdrawal Agreement tomorrow; quite what proceeding with the Petition would achieve is not overtly clear).

The Petitioner’s case appears to be based on the premise that the latest version of the Withdrawal Agreement negotiated between the UK and the EU would breach section 55 of the Taxation (Cross-Border Trade) Act 2018. The Petitioner’s case here was that section 55 of the Taxation (Cross-Border Trade) Act 2018 (“the 2018 Act”) constrained how the Government could exercise its prerogative powers in respect of foreign affairs. Senior Counsel for the Petitioner argued that “section 55 was a prohibition specifically directed to what the United Kingdom Government can or cannot do in this area. In particular(…) the section does not allow the Government even to propose for ratification by the UK Parliament any arrangement allowing for Northern Ireland to form part of a separate customs territory to Great Britain as this would involve the United Kingdom Government impermissibly having entered into an arrangement with another party to allow for such a result.” The Lord Ordinary described this part of the Petitioner’s case as being, at best, a weak argument [23].

In my view, for what is worth, even if the Petition manages to overcome the significant hurdle of its apparent incompetent nature, the section 55 argument itself is one that is unlikely to find favour with the court. Parliament is supreme and Parliament may change the law. If section 55 of the 2018 Act presents a difficulty with the envisaged withdrawal agreement then Parliament may amend or repeal section 55 of the 2018 Act so as not to cause any difficulty. In any event, there is a principle in statutory interpretation known as “implied repeal”; that is, where a later statutory provision is in conflict with an earlier statutory provision, the later provision takes precedence and the earlier one is impliedly repealed. There are some exceptions to this, for example, in relation to what have been termed “constitutional statutes” where the courts have held there would have to be an express repeal. Whether section 55 of the 2018 would fall into that category is, in my view, doubtful and as such the principle of implied repeal would likely apply.

For those reasons, the Lord Ordinary determined that the Petitioner had not presented a prima facie case.

In terms of the balance of convenience, the Lord Ordinary found that it was stringly against the court granting the interim orders sought by the Petitioner. As such, the Petitioner was unsuccessful in his motion; however, this is not the end of the Petition. Today’s hearing was not a full hearing on the merits of the Petition. The Petition is still live; the court has made the usual orders for intimation, advertisement and Answers. This means that the Advocate General will now have the opportunity to lodge Answers to the Petition.

This Petition, although for Suspension and Interdict, is an application to the supervisory jurisdiction of the Court of Session; in other words, it appears to be a Petition for Judicial Review which seeks suspension and interdict as the remedies (see, for example, statement 2 of the Petition which states clearly that the purpose of the Petition is to “ensure that Ministers of the Crown in right of the United Kingdom do not breach their public law obligations laid down in statute”). Therefore, it will have to come before a Lord Ordinary to determine whether permission should be given for the Petition to proceed after Answers are lodged; this is governed by section 27B of the Court of Session Act 1988. It is a low hurdle that has to be crossed in order to secure the court’s permission to proceed: the court only has to be persuaded that there is some prospect of success which is more than fanciful; there doesn’t need to be a probability of success. The permission test is designed to eliminate fanciful claims, but not necessarily to prevent weak claims from progressing to a full hearing of their merits.

This is, in my view, a case that will almost certainly fail to clear the low hurdle that it needs to proceed beyond the permission stage. It seems to be a fanciful claim with no real prospect of success.  The section 55 argument is, as the Lord Ordinary has identified, a weak one (placing it at its highest). However, there is the more fundamental question of competence. It seems to me that the Petition is trespassing into matters covered by parliamentary privilege. However, I may well be wrong on the permission question and we will have to wait and see what happens when matters reach that stage.

Advertisements
Random

Finding the balance: LAD Media Ltd -v- Informtion Commissioner

On 18th January 2017 the Information Commissioner exercised her powers under Section 55A of the Data Protection Act 1998, as modified by the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), and served a Monetary Penalty Notice [pdf] on LAD Media Limited in the amount of £50,000.

LAD Media is a Greater Manchester based lead generation and data brokerage company operating in the financial services and debt and claims sectors.  The company had engaged in a direct marketing campaign sending 393, 872 SMS messages.  The numbers had been bought in from a third party and the contract between LAD Media and its supplier warranted that all of the numbers had valid consent for the purposes of direct marketing.  In fact there was not valid consent in place which enabled LAD Media to utilise them for marketing.

LAD Media appealed the penalty to the First-Tier Tribunal (Information Rights) on 6 grounds.  The Tribunal’s decision [pdf] records that it refused 5 out of the 6 grounds of appeal and allowed one ground of appeal.  The successful ground of appeal related to the amount of the monetary penalty notice.  The Tribunal reduced the amount from £50,000 to £20,000. In doing so the Tribunal has given some guidance on relevant factors in setting the amount of a Monetary Penalty, although, it was clear that it wasn’t being prescriptive.

Relevant considerations include:

  • The circumstances of the contravention;
  • The seriousness of the contravention (as assessed by (i) the harm caused, or likely to be caused, by the contravention; (ii) whether the contravention was deliberate or negligent; (iii) the culpability of the recipient, including reference to any steps taken to avoid the contravention)
  • whether the recipient is an organisation or an individual, including its size and sector
  • the financial circumstances of the recipient, including the MPN’s impact
  • Steps taken to avoid further contravention(s)
  • Any redress offered to those affected by the contravention

The Tribunal also stated, at paragraph 48, that it considers deterrence as a relevant factor and that this extends not only to deterring the recipient from further contraventions, but also to deterring others.

In the case of LAD Media, the tribunal took a number of factors into consideration; including that it was the only contravention of PECR and that it was the first time that the LAD Media had engaged in a marketing campaign of this nature.  The Tribunal was provided with LAD Media’s accounts for 2014, 2015 and 2016; it noted that at the time of the contravention there was a substantial increase in both turnover and profit.  It also noted that there was no evidence that LAD Media would go bankrupt if it had to pay the MPN nor what the real impact of paying a MPN would be (see paragraph 49).

At paragraph 50 the Tribunal noted that the lack of provision of full information to the Commissioner and the woeful lack of due diligence undertaken were aggravating factors.  Although, there is little indication as to how the Tribunal treated these aggravating factors in setting the £20,000 figure for the Monetary Penalty.

What does this case tell us?

This tribunal decision ought not to be slavishly followed by anyone; it does not bind the Commissioner or the First-Tier Tribunal.  However, it does provide some interesting and useful guidance as to the sort of matters that the Commissioner ought to be taking into account when determining the amount of a Monetary Penalty Notice.

On financial impact, it is clear that the Tribunal considers that the Commissioner ought to be considering what the impact of the penalty will be on the recipient’s finances; however, that should be taken in context with what it said about deterrence.  It suggests that while the financial circumstances of the recipient are a relevant consideration, they may not necessarily be determinative.  Recipients should probably expect any monetary penalty to be painful financially.

How the data controller responds to the contraventions in question may be of importance in mitigating against the amount of the monetary penalty.  Holding your hands up to a breach and taking steps to try and prevent future contraventions may well go in a data controller’s favour.  However, the Tribunal considered the level of due diligence taken by LAD Media to be an aggravating factor, so any steps taken following a contravention may well be outstripped by a failure to take adequate steps in the first place to prevent a contravention.

The Tribunal seemed unimpressed with the way in which LAD Media dealt with the Commissioner following the contravention; reference was made to a lack of full disclosure and this was noted to be an aggravating factor.  There may be a temptation to try and minimise things in the hope of minimising the extent of any financial penalty; however, this approach could have the opposite effect and result in an increased penalty.

Legal System, UK Constitution

There is only one law: British Law (or is there?)

Paul Nuttall MEP, Leader of the United Kingdom Independence Party, kicked off lots of discussion on twitter today with his suggestion that upon this fair island there is only one law and that it is British law.  Many people have lined up to correct Mr Nuttall’s understanding of law within the United Kingdom, while some people (and they are by far in the minority) have tried to argue that he is correct.  So, is there only one law in the UK?

I will assume for these purposes that Mr Nuttall was referring to the UK and that he was not ignoring the existence of Northern Ireland (Britain referring only to England, Scotland and Wales – the UK’s full title being the United Kingdom of Great Britain and Northern Ireland).  The United Kingdom is divided into three separate legal jurisdictions:  those of England and Wales, Northern Ireland and Scotland.  So far as the law is concerned each jurisdiction might as well be a foreign country.  Lawyers qualified in one jurisdiction are not permitted to practise law in any of the others (with a few minor exceptions, which I shall return to later) without first undergoing a process of re-qualification.  The legal systems are very different from one another (and the substantive laws are completely different in many key areas of law, such as the criminal law).

The separate nature of Scots law has existed throughout the lifetime of the political union between the Kingdoms of England and Scotland.  The treaties and Acts that gave effect to this political union preserved the separate Scottish legal system.  The systems have developed independently since the beginning of the political union (but have, at various times, influenced each other).  The historical development of Scots has been very different from that south of the border.  There has been a big influence from continental “civil” law (“civil” as in the legal system, not to be confused with “civil” as all the laws of the land that are not criminal – yes, it’s a trifle confusing!) including French and Roman Law (indeed, it is still a requirement to have studied the roman law on property and obligations in order to be called to the Bar in Scotland).

There are areas where the law overlaps to a great extent and these could be classed as “British Law”, but I suggest that this is the wrong classification (for reasons I shall come onto shortly).  Some examples of these include Road Traffic laws (although there are some divergences, particularly around the drink-drive limit); anti-terror laws, immigration laws, employment laws and company law (although, there are some differences here as well).  An example exception to the general rule that a lawyer qualified in one jurisdiction cannot practise law in another without re-qualifying would be in the case of employment laws.  A Scottish Solicitor could move to London (which, of course, is in England) and practise employment law from there within the Employment Tribunal and the Employment Appeal Tribunal without the need to re-qualify in England and Wales.  That is because the substantive law is the same and the Tribunals (at present) have UK-wide jurisdiction (and so lawyers from all of the three UK jurisdictions have ‘rights of audience’).

The employment law example doesn’t hold true for all of the examples given above of areas where the substantive law is the same.  Take road traffic laws and anti-terror laws as an example; these are matters of substantive criminal law and are dealt with in the criminal courts.  A Scottish Solicitor, couldn’t represent someone in a Magistrates’ Court charged with a driving offence, or in the Crown Court charged with an anti-terror offence.  Equally, an English, Welsh or Northern Irish Solicitor couldn’t appear in the Sheriff Court or Justice of the Peace Court in Scotland to represent someone being prosecuted for a road traffic offence.  There is a lack of ‘rights of audience’.

Where a lawyer in one jurisdiction represents a client from another in a tribunal with a UK-wide jurisdiction, it can be problematic when matters come before the courts on appeal.  An example of this can be seen in a tax case from 2015.  The case in question is Taylor Clark Leisure Ltd v The Commissioners for Her Majesty’s Revenue and Customs.  In this case the Appellant, Taylor Clark Leisure Ltd (a company registered in Scotland), had instructed Philippa Whipple QC to represent them in the UK Tax Tribunals in connection with a VAT appeal (along with Philip Simpson QC, a member of the Scottish Bar); they were now looking to appeal to the Court of Session in Scotland.  Ms Whipple is a Barrister in England and Wales and thus had the right to appear for the Scottish Company in the UK Tax tribunals.  The Court of Session held, unanimously, that she had no right to appear in the Court of Session.

The 2015 case above highlights the position that the three legal jurisdictions in the UK are, for all intents and purposes, foreign countries.  Even where a matter is of UK-wide application, the different jurisdictions can have a significant impact upon the course of litigation.  It is not possible for an English lawyer who has not either been admitted to the public office of Advocate, nor as a Solicitor in Scotland (and then been granted extended rights of audience) to appear in the Court of Session.  That would hold true of other courts in Scotland as well.

It is probably fair to compare the situation to that of EU law, where you have 28 different member states (and many more jurisdictions – the UK is not the only member state with more than one jurisdiction) with different legal systems that share some of the same laws.  Although, that comparison isn’t exactly in point because of the Establishment Directive (which doesn’t apply to inter-member state jurisdictions); but that’s not for here!

What of the UK Supreme Court?  Doesn’t it have UK-wide jurisdiction?  Yes, it does.  However, it is not straight forward, certainly insofar as Scotland is concerned (as a Scottish lawyer I couldn’t possibly begin to speak about the situation in England and Wales or Northern Ireland).  Before we go any further, it might be useful if I explain (briefly) the concept of precedent.  Precedent, in law, means that where a court that is higher than the court considering a matter has made a decision on the same point of law, the decision of the higher court is binding upon the lower court (unless it is possible for the lower court to distinguish the case before it from the one in the higher court).

Applying this rule strictly, the UK Supreme Court is higher than the Court of Session and therefore, logically, all decisions of the UK Supreme Court on the same point of law are binding on the Court of Session.  That’s not quite how it works; only decisions of the UK Supreme Court that arise out of a Scottish case are binding on the Court of Session (or any other court in Scotland); decisions from the UK Supreme Court arising out of cases from England and Wales or Northern Ireland are persuasive (in the same way that a decision of the Supreme Court of Canada may be considered persuasive authority in a Scottish court).  For practical reasons, the Scottish courts will generally follow a decision from the UK Supreme Court on a point of law that arises from a UK-wide law which has come from a case from England and Wales or Northern Ireland.  After all, if the UK Supreme Court has decided the law on a particular point in one way in one case, it is unlikely that it will decide it a different way in another case (although it is possible).  That pragmatic view does not alter the fact that a UK Supreme Court authority from an English (including Welsh) or Northern Irish case is merely persuasive in a Scottish court.

Then, there are criminal law matters.  The highest appellate court for criminal matters in Scotland is the High Court of Justiciary when sitting as an appellate court.  There is no right of appeal to the UK Supreme Court.  The UK Supreme Court has gained jurisdiction in respect of Scottish criminal appeals in very limited circumstances as a result of devolution.  An accused person who complains that their human rights have been infringed can appeal to the UK Supreme Court, but only on that ground.  The UK Supreme Court does not, however, have the power to quash a conviction or to alter a sentence in a Scottish criminal appeal; it must remit the case back to the High Court of Justiciary to apply its decision to that case.  Nor does it have the right to interpret criminal offences enacted by the Scottish Parliament, nor consider common law offences in Scotland; except upon the limited grounds that there has been an infringement of EU law or the European Convention on Human Rights.

In short, it is, in my submission, incorrect to say that there is one law applicable across the whole of the UK called British law.  There are three separate laws across the UK (and a fourth developing as a result of devolution to Wales) and the laws in many key areas are very different (an English criminal lawyer would probably look at you funny if you mentioned hamesuken to them).  It is more accurate to say that there are three legal systems which share some of the same laws.

Data Protection, English Law, Information Law, Information Rights, Scots Law

Litigation, Privilege and Subject Access

The English Court of Appeal has issued a judgment in relation to subject access rights under the Data Protection Act 1998 (“the DPA”).  The Court’s decision centres on three main issues in relation to subject access requests:  (1) the extent of the exemption for legal professional privilege; (2) when the effort to comply with a subject access request is disproportionate; and (3) the discretion of the court when considering an application pursuant to Section 7(9) of the DPA .

The right of subject access is one of the fundamental rights afforded to data subjects.  It allows individuals to discover what information a data controller is processing about them, in what way they are processing it (including who it has been or may be disclosed to) and to check the accuracy of the personal data being processed.  The importance of the data subject’s right is marked by the right of a data subject to apply to the courts in order to secure compliance where a data controller has failed to comply.  It is not an absolute right; there are circumstances in which a data controller does not need to comply with a subject access request.

The Extent of the Legal Professional Privilege Exemption

Paragraph 10 of Schedule 7 to the DPA makes provision for exempting information from the subject access provisions in Section 7 where “the data consist of information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings.”

In Dawson-Damer there were two interpretations of this exemption put forwarded, described in the judgment as the “narrow” and “wide” interpretations.  The Court preferred the narrower of the two holding that the exemption “relieves the data controller from complying with a subject access request (“SAR”) only if there is relevant privilege according to the law of any part of the UK.” [45] The Court also held that “the DPA does not contain an exception for documents not disclosable to a beneficiary under trust law principles.” [54]  The Court held that the Legal Professional Privilege exemption does not extend to such information. [54].

Disproportionate Effort

The Court held that whether complying with the SAR, or taking certain steps as part of the process of complying with the SAR, “will be a question for evaluation in each particular case [77].  The court noted that “it is clear from the recitals to the Directive that there are substantial public policy reasons for giving people control over data maintained about them through the system of rights and remedies contained in the Directive, which must mean that where and so far as possible, SARS should be enforced.” [79].

Court’s discretion

The discretion afforded to the Court under section 7(9) of the DPA is a “general discretion” [105].  The Court held that Durant v Financial Services Authority did not create a position whereby a data subject cannot exercise DPA rights for purposes outside the DPA.  Durant was concerned with the scope of the term ‘personal data’ and as such the Court’s comments in Durant were in that context.  They did not mean that where individuals had another purpose (for example, with a view to using the material in litigation) that they could not exercise their subject access rights.  The Court noted that “it would be odd if the verification of data was always in practice a complete aim in itself which excluded all others…neither the Directive nor the DPA compels that interpretation.  Nor has Parliament expressly required a data subject to show that he has no other purpose.” [108]  The court did not that there might be a different outcome where an application under section 7(9) of the DPA “was an abuse of the court’s process…or if the claimant was a representative party who had some purpose which might give rise to a conflict of interest with that of the group or body he represents.”

Comment

This is an important case concerning the right of subject access under Section 7 of the DPA and is one that all data protection practitioners ought to be familiar with.  Although it is not directly binding on the courts in Scotland (it being a decision of the English Court of Appeal), it is quite likely that a Scottish court faced with similar issues will arrive at the same conclusions as the Court of Appeal has done here.

The exemption for legal professional privilege is a narrow one; it does not cover information that might be the subject of such claims in jurisdictions other than one of the three UK jurisdictions, nor does it extend to claims of confidentiality that fall outside of the scope of legal professional privilege.

When it comes to disproportionate effort in dealing with a SAR, it is a balance between the effort to comply and the data subject’s right.  It is clear from both the statutory provisions themselves and the comments of Arden LJ in this case that the data subject’s right is a fundamental one.  As a consequence the barrier is a high one when trying to argue that complying would cause a disproportionate effect.  The Court did not consider that the Taylor Wessing LLP had even begun the process, let alone be able to demonstrate that complying would be disproportionate.  It would appear that data controllers will not simply be able to look at a SAR and dismiss it out of hand as resulting in a disproportionate effort; the fundamental nature of the right of subject access will trump the effort it is necessary to go to in to comply in most cases.

Finally, if you’ve ever been under the belief that law firms are data processors for client information then this case is clear that this is wrong:  law firms are data controllers.  If a law firm receives a subject access request from a third party then the personal data must be assessed carefully to establish whether privilege exists and where it does, it must be claimed.

Civil Law, Criminal Justice, Criminal Law, Human Rights, Legal System, Scots Law

Where crime and the civil law intersect: the case of DC v DG and DR

Today, Lord Armstrong sitting in the Court of Session in Edinburgh (and this is an important point to which I shall return shortly) has issued a judgment which has attracted much publicity over the course of today.  Lord Armstrong ordered that the Defenders, two former Scotland international football players, should pay, on a joint and several basis, the Pursuer £100,000 in compensation.  This follows an allegation by the Pursuer that the Defenders raped her in January 2011.

This is an important case, but it is necessary that some preliminary matters are covered.  The first is that although this case relates to an allegation that an extremely serious criminal offence has been committed, the Court of Session deals entirely with civil cases.  What we have here is a claim for damages raised by the Pursuer.  The Pursuer had made a complaint to the Police which initially proceeded to prosecution, but for some reason the prosecution was discontinued.  Lord Armstrong’s judgment does not go into detail on this (and the reasons why the criminal case was dropped are irrelevant to the task his Lordship was faced with).  The most likely explanation for the prosecution not proceeding would be that the Crown no longer believed that it had sufficient evidence to provide a realistic prospect of success in proving its case against the accused footballers.

Someone not familiar with the law may well reach the conclusion that such a decision by the Crown must be wrong in view of Lord Armstrong’s judgment; however, it does not necessarily follow that a finding of liability in a damages action means that the Defenders would be convicted in a criminal court.  In both the civil and criminal courts there is the burden of proof and the standard of proof.   The burden of proof generally lies with the party who bring the case (there are some exceptions to this, but they’re not relevant here and it may only confuse matters to explain them).  In a case brought in the civil courts, such as the Court of Session, the burden of proof generally lies with the Pursuer as the person brining the case.  In a criminal case the burden of proof rests with the Prosecution. That tells us who needs to prove their case, but how do they do that?  That is where the standard of proof comes in.

There are two standards of proof.  Where a case is brought in the civil courts, the pursuer needs to prove their case on the balance of probabilities.  Essentially this means that the judge deciding the case needs to be satisfied that the Pursuer’s version of events is more probable than not.  The judge deciding the case doesn’t even need to consider that the Defender’s version of events is more likely than the Pursuers.  If the Pursuer doesn’t prove their case on the balance of probabilities then they fail, even if the judge things the Defender’s case is a load of rubbish.  This contrasts with the situation in a criminal court where the Crown has to prove its case beyond reasonable doubt.  This is a substantially higher test to pass (and rightly so as the consequences of a criminal conviction are much graver).  It is not enough that the jury think that it is more probable that the complainer is the victim of the crime alleged and that the accused committed that crime than not; if they have even the smallest amount of doubt that has a reasonable basis, then the Accused is entitled to the benefit of that doubt and must be acquitted.

The effect of this is that it is much easier to prove something in a civil court than in a criminal court.  That means that although Lord Armstrong was satisfied that it was more likely than not that the events averred by the Pursuer occurred, it does not follow that if the same evidence were to be put before a jury that the jury would convict the accused.

Lord Armstrong’s decision is lengthy; it runs to almost 350 paragraphs over some 42 pages.  As would be expected with any civil judgment it sets out the case for the Purser and Defenders with reference to the evidence of the witnesses.  It then analyses the evidence and reaches a decision.  However, Lord Armstrong only had to be satisfied that the Pursuer had proved her case on the balance of probabilities.

What does this case mean?

For the Defenders this is not a criminal conviction; it will not appear on their criminal record.  Unlike if they were convicted in a criminal court they do not need to declare the finding in any future employment application; they cannot be required to sign the sex offenders register nor could they have faced imprisonment.  So far as the criminal law is concerned they remain innocent of the crime of rape.  It is important that this finding by the Court of Session (while in all probability comforting to the Pursuer) is not seen in the same light as if it were a finding of guilt in the High Court.  The Defenders, between them, need to pay the Pursuer (subject to any appeal) the sum of £100,000 – this is compensation, not a fine.  For the Pursuer it may well amount to a feeling, in some way, of justice.  It may well be one thing (among many) that helps her to move on and begin to rebuild her life – at the age of 30 she has  many more years of life left to live and hopefully those years can be better than the past 6 years.

The case also has a wider impact; not because it decides something new, but because of its high profile nature.  It highlights that where a criminal prosecution is not possible due to the higher standard of proof (or even where a prosecution ends up in a verdict of Not Guilty or Not Proven) it may be possible to have recourse through the civil courts.  We recently saw the (failed) attempt to privately prosecute Harry Clarke when the Crown refused to initiate proceedings against him for alleged criminal offences arising out of the tragic George Square Bin Lorry crash.  It may be that the families of those bereaved (along with those who suffered injury in the crash) elect to raise civil proceedings against Harry Clarke (or more likely Glasgow City Council, on the grounds of vicarious liability, as his then employer).

It is unlikely that every failed prosecution will result in a successful claim for damages in the civil courts.  Although the Pursuer only needs to prove their case to a lower standard of proof; they still need to be able to present the court with evidence to support their claim and this may still prove to be a difficult task depending on the circumstances of each case.  There are also the costs associated with brining a civil claim, which can be substantial (although legal aid may be available to those who qualify for it).  Even where a Pursuer is successful in their claim it is unlikely (if not guaranteed) that they will not recover all of the money they have spent in pursuing the claim.  It therefore may not be economically viable (even where legal aid is available due to the “clawback” provisions in the Regulations) to pursue the case where the amount of compensation awarded is likely to be less than the difference between what has been paid in legal fees and what is recovered through an award of expenses.

These are all matters that a solicitor can guide a potential Pursuer through and are matters that are kept under review throughout the lifetime of a case.  It may be possible to settle cases out of court which can substantially reduce the cost (and stress) of the case.  However, the civil courts are (and always have been) a place where a victim of crime can take their case where the Crown cannot prosecute (or where a prosecution is unsuccessful).

Random

Brexit and Parliamentary time: the Scottish Tories’ complaint

Conservative MSP Douglas Ross bemoaned, in the Scottish Parliament debating chamber, today the amount of time that has been spent discussing Brexit and its implications for Scotland.  He felt that this was to the detriment to other matters.  To be fair, it is to the detriment of other matters; however, that is the reality of the political landscape we find ourselves in.  Whether people like it or not, Brexit is going to swallow up vast amounts of government time (both in Edinburgh and in London), parliamentary time (both in Holyrood and Westminster) and civil service time (both at a Scottish and UK level).

We hear talk about soft Brexit and hard Brexit, but the reality is that Brexit itself is hard.  EU law directly affects or influences almost every single area of devolved responsibility.   Reserved matters which will be affected by Brexit also have direct implications on areas of devolved responsibility.  The reality is, especially as we continue through a period of austerity, that things have to give to make way for Brexit. More and more ministerial time will be taken up with Brexit as will the time spent by Civil Servants.  Yes, the business of Government must go on (and it will do so), but the priorities will have to change.  A lot of time will be spent on figuring out what needs to be done to ensure that when the UK leaves the European Union there aren’t any lacunas in the law and as time progresses and we learn more about what the UK’s new relationship with the EU will be legislation will need to be enacted (both in Holyrood and Westminster) to give effect to that.  Ensuring that there are no lacunas and that the legislative framework is in place to give effect to our new relationship with the EU, whatever shape that will be, will feature highly on the legislative agenda between over the majority of this Session of the Scottish Parliament.

Mr Ross pointed out that Education was said by the First Minister to be her and her Government’s number one priority; well, education will be affected by Brexit.  Changes to rules on immigration may well impact upon the recruitment of staff and students, it will have an impact upon issues like tuition fees and university and secondary school foreign exchange programmes to name some areas.  Mr Ross highlighted the ambition of getting more women to take up the STEM subjects; well here is another area where Brexit will have an impact: through research funding.  A lot of research funding (from PhD level all the way through to top end research) derives from EU sources.  Research work undertaken can act as a way to inspire young people, including young women, into STEM subjects.

I have been known to castigate and criticise the SNP on many occasions over the years; however, I can’t help feel that the Conservative Party are being rather foolish here.  It was the decision of the former Conservative party leader to hold the referendum that will now result in one of the biggest constitutional, legal and political upheavals in a very long time.  Mr Ross and his conservative colleagues may not like the amount of time that Brexit will eat up over the coming years, but they’ll just need to lump it for that’s the reality of the political landscape in which we live.

Court Martial, Criminal Justice, Criminal Law, Military Justice, Random, Service Law

The Case of Marine A

Yesterday the Court Martial Appeal Court (which, as the name suggests, hears appeals from Courts Martial) refused an application for bail by Alexander Blackman (more popularly known as ‘Marine A’) pending his appeal against his conviction for Murder.  There was, predictably, an almighty uproar by people and equally predictably, the uproar appears to be coming from people with scant knowledge of the facts (or a complete lack of interest in the facts).  Before looking at the decision of the Court Martial Appeal court, it might be worthwhile recapping, briefly, how we have arrived at this situation.

‘Marine A’ served with the Royal Marines and was deployed to Afghanistan.  On 15 September 2011 insurgents attacked a compound that was occupied by the Royal Marines.  A helicopter was called in to assist with the fire fight that had ensued.  One of the insurgents was located in open ground and the helicopter opened fire on that particular insurgent.  A unit was tasked to undertake an assessment of the damage from the battle and that unit was under the command of ‘Marine A’.

Each of the three armed forces in the UK has their own police force – The Royal Military Police (Army), the Royal Navy Police (the Navy) and the Royal Air Force Police (the RAF).  About 12 months later the “Military Police” (phrase used in the Court Martial Appeal Court’s judgment) were undertaking an investigation into unrelated matters but found video recordings of the incident in Afghanistan on 15 September 2011.  It is understood that in the video footage ‘Marine A’ is heard to admit that he had broken the Geneva Convention when killing an insurgent.  That discovery by the RMP resulted in ‘Marine A’ together with others being charged with Murder.  The matter was tried before a Court Martial and in November 2013 ‘Marine A’ was convicted of Murder.

The Court Martial is a military court which has its current basis in the Armed Forces Act 2006.  It hears cases against service personnel form all three of the services.  Proceedings are presided over by a Judge (who is called a “Judge Advocate”) and there is a Board consisting of between three and seven officers and warrant officers (who take the place of the jury); the size of the Board depends upon the seriousness of the charge(s).  The Court Martial may try any offence against service law (section 50(1), Armed Forces Act 2006), which includes all criminal offences under the law of England and Wales (see Section 42 of the Armed Forces Act 2006).  The Court Martial operates much like the Crown Court (although there are notable differences) and matters of law are determined by the Judge Advocate while matters of fact (including innocence and guilt) are a matter for the Board.  Matters are prosecuted before a Court Martial by the Service Prosecuting Authority.  The SPA an independent tri-service body which is staffed by qualified lawyers who are drawn on secondment from the Legal Branches of the Army, Navy and RAF (all of whom are commissioned officers in their respective service).  The SPA is independent from the chain of command and operates along similar lines to the Crown Prosecution Service.  The SPA is under the superintendence of the Attorney General of England and Wales to mark its complete independence from the Chain of Command.

Following upon ‘Marine A’s’ conviction for Murder he unsuccessfully appealed his conviction to the Court Martial Appeal Court.  Thereafter an application was made to the Criminal Cases Review Commission which has subsequently made a reference back to the Court Martial Appeal Court.  For completeness, the judges who sit in the Court Martial Appeal Court are those set out in Section 2 of the Courts-Martial (Appeals) Act 1968 and include the judges of the Court of Appeal of England and Wales, such of the Lords Commissioners of Justiciary as the Lord Justice General may from time to time nominate for the purpose, and such of the judges of Her Majesty’s Supreme Court of Judicature of Northern Ireland as the Lord Chief Justice of Northern Ireland may from time to time nominate for the purpose.

The Judgment of the Court Martial Appeal Court discloses very limited details about the nature of the appeal before it; however, it would appear that Blackman’s lawyers are arguing that new psychiatric evidence produced renders the conviction for murder unsafe.  In terms of a disposal the Appellant is seeking, it is that his conviction for murder be quashed and either substituted with a conviction for Manslaughter or a fresh trial ordered.  In essence, the Appellant is not arguing that he is wholly innocent – he is arguing that he was criminally responsible for the death of the insurgent but that his responsibility was diminished and therefore he is guilty of Manslaughter rather than Murder.  The Prosecution do not accept this and maintain that the conviction for Murder is the correct conviction.

In short, what we had is a person who served in the armed forces, who was investigated by members of the armed forces, prosecuted by members of the armed forces (acting independently from the Chain of Command) and thereafter convicted of murder by members of the armed forces seeking Bail pending an appeal in which he hopes his conviction for Murder will be substituted with a conviction for manslaughter.  When assessing the case of Marine A it is my view that we must do so with that short summary in mind.

In terms of Bail, the prosecution was neutral on the matter.  As we know, the Court Martial Appeal Court refused bail.  The test for bail, rightly and sensibly, for a person who stands convicted of a crime is entirely different to that of a person who is yet to stand trial.  The presumption of innocence does not apply following conviction.  The test that the Court Martial Appeal Court applied is set out in Paragraph 18 of its judgment.  It is a very high test, as would be expected.  It is exactly the same test that would be applied to someone convicted in the Crown Court of Murder who was seeking bail from the Court of Appeal pending an appeal.

The Court Martial Appeal court determined that Marine A’s case did not meet the high test for bail to be granted and so Bail was refused.  I’m not an English lawyer and it is English criminal law that is applied by the Armed Forces Act 2006; however, I would have thought that those acting for the Appellant would have advised him on his prospects of success in his application for Bail and I suspect that neither he nor his legal representatives were surprised when Bail was refused.

The Court Martial Appeal Court appears though to be moving at breakneck speed in hearing the appeal.  The Criminal Cases Review Commission made the reference earlier this month and the Court is currently looking to have a hearing fixed for January or February 2017.  In an attempt to speed matters up the Court has severed the Appellant’s grounds of appeal and will deal initially with the primary ground of appeal (that being the one arising out of the new psychiatric evidence).  If the Appellant is successful on that ground the remaining grounds are irrelevant, if he is unsuccessful the Court Martial Appeal Court will hold a further hearing on those grounds of appeal.

While it may have been disappointing for the family, friends and supporters of ‘Marine A’ that his application for Bail was refused; it is important that the decision is seen in its context.  Furthermore, even if Marine A is successful in his appeal there is no guarantee that he will be immediately released from prison.  If his conviction for Murder is quashed and replaced with one for Manslaughter the sentence will also need to be substituted; it may well be that Marine A will need to serve further time in custody.