Civil Liberties, Constitutional Law, Coronavirus, Criminal Justice, Criminal Law, Human Rights, Politics, Scots Law

The lockdown and public protest

On 25th May 2020 the world was shown a video of a 46-year-old black man, George Floyd, being restrained on the ground by a number of police officers in Minneapolis. That video showed one police officer kneeling on the back of his neck for almost nine minutes. Mr Floyd died and the police officers involved have been charged with a range of offences, including one officer being charged with murder. The footage has rightly caused anger around the world. This anger has resulted in riots happening in various places around the United States of America and protests have been held around the world in support of the Black Lives Matter campaign. Protests have been planned for the forthcoming weekend in Scotland.

The first half of 2020 has seen governments across the world try to deal with COVID-19, a novel coronavirus first seen in the Wuhan province of China in late 2019. Figures available at the current time place COVID-19 as the leading cause of death globally in 2020 so far. Governments throughout the world have been responding to the virus by placing varying degrees of restrictions on those who live within their jurisdiction in an effort to try and contain the virus. Whether these restrictions are the best way to go about achieving this aim is something that has been debated since the restrictions started to come in, but this post is not going to consider that question. What this blog post aims to do is consider how the right of assembly in Article 11 of the ECHR interacts with the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the lockdown regulations”).

The lockdown regulations were made by Scottish Ministers on 26th March 2020 under powers conferred upon them by the Coronavirus Act 2020; they came into effect immediately. The Scottish Government has also published guidance on the lockdown and I have considered the interaction between the law and the guidance before (mainly in the context of the powers of the police and the approach to policing adopted in some parts of the United Kingdom). The lockdown regulations are what is known in law as “subordinate legislation”; that is, they are laws that have been made not by Parliament itself, but by government ministers exercising powers delegated to them by Parliament; in this case, it is power delegated to Scottish Ministers by the United Kingdom Parliament. When ministers are making subordinate legislation they cannot exceed the authority given to them by parliament. That is to say, if subordinate legislation made by Ministers includes something which Parliament has not given them the power to do then the courts can strike down the subordinate legislation to the extent that it exceeds Ministers powers (i.e. it is outside the Minister’s competence)

In Scotland, under section 57(2) of the Scotland Act 1998, Scottish Ministers do not have the power to make any subordinate legislation where it is incompatible with the rights under the European Convention on Human Rights (i.e. those rights listed in Schedule 1 to the Human Rights Act 1998). That includes both the right to freedom of expression (Article 10) and the right to freedom of assembly (Article 11). The lockdown regulations therefore always have to be read in a way that is compatible with the convention rights and where they cannot be read in compatibly with them, they will be outwith the competence of Scottish Minisers and “not law”.

Regulation 6 of the lockdown Regulations prohibits all gatherings in a public place of more than two people except in a list of specific circumstances. None of which would reasonably apply to a public protest. It is an offence to fail to comply with Regulation 6; however, Regulation 8(4) of the lockdown regulations provides a defence to an infringement of a Regulation 6 where the person has a “reasonable excuse”. Most will, by now, be familiar with the “reasonable excuse” provisions, but mainly in connection with Regulation 5, which provides that no person may leave the place that they are living except with a reasonable excuse. In respect of a public protest there are two parts of the lockdown regulations in play: there is Regulation 5, which comes into play when a participant leaves the place that they are living and then there is Regulation 6, when the arrive at the place where the protest is to take place.

In this post, I am only going to focus on the relationship between Regulation 6 and Article 11. That is because, if the protest would be lawful under Regulation 6 then it would follow that a person leaving the place where they live to attend the protest would be a reasonable excuse. To say otherwise, would be an absurd reading of Regulation 5 in the context of the lockdown regulations as a whole.

Article 11

This Article provides that everyone has the right to freedom of peaceful assembly and to freedom of association with others. However, as with nearly all of the convention rights it is not an absolute right and can be subject to restrictions which are “prescribed by law” (for example Regulation 6 of the lockdown regulations) and which are “necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”.

The European Court of Human Rights has held that the exceptions in Article 11 are to be construed strictly and that only convincing and compelling reasons can justify restrictions. The restrictions must be in the pursuance of a legitimate aim and must be proportionate to that aim. The government has to be able to show a rational connection between the restrictions and the legitimate aim being pursued.

The lockdown regulations have been made for a specific purpose, which is set out in the preamble to the lockdown regulations which states that they have been “made in response to the serious and imminent threat to public health which is posed by the incidence and spread of coronavirus in Scotland.”

The Government has been clear throughout that large public gatherings of people pose a particular risk in respect of the spread of coronavirus. However, there are a number of things that need to be consider. Is the complete ban on public gatherings as included in Regulation 6 proportionate to the legitimate aim being pursued? Is there a less severe restriction that could be placed upon people? Also, there is, I would suggest, a difference between indoor and outdoor gatherings (indeed, the Government’s own guidance draws that distinction on meeting family members). Another relevant factor, I would suggest, is that a public protest is different in nature to a gathering for a football match or a music concert.

I have previously expressed concern that the apparent complete ban on public protest is something that is unlikely to be compatible with the convention rights, even in the current circumstances. For example, a protest which takes place in a large open space where everyone is staying at least 2m away from people who are not members of their own household and where appropriate face coverings and other protective clothing (such as gloves) are being worn may well present a difficulty for the Government. That is not to say that it would be impossible for the Government not to show that banning such a protest is a proportionate means of meeting their legitimate aim; only, that it will be considerably more difficult than, say, defending the ban as it relates to sports fixtures. However, on balance, there is, I think, a strong basis for suggesting that the Government would ultimately be successful in defending the current position if it was forced to, but in doing so it would be facing a reasonably strong argument that its actions were unlawful.

The subject-matter of the protest also has, I think, to play a part in the balancing exercise as well. Is it a protest that could reasonably be delayed to a point where the restrictions are less stringent than they are now or would the effectiveness of the protest be undermined if it were to be delayed? Clearly, the black lives matter campaign is front and centre in the global news cycle at the moment and that is, I think, a factor which would need to be weighed into the consideration. However, equally, the campaign is one that has (sadly) been going on for a very long time and is almost certainly going to need to continue beyond now. It is a depressing reality that there continues to exist in our world a significant degree of racism and racial prejudice. On balance, I’m not convinced that an urgency argument would necessarily tilt the balance against the government.

It may also be worth noting that the High Court in England and Wales refused interim injunctive relief in a judicial review in a challenge brought to the English equivalent provisions and brought with the aim of enabling a mosque to open for Friday prayers at the end of Ramadan. That case was concerned with Article 9 (freedom of thought, conscience and religion), but it is worth of note. In that case Mr Justice Swift did not think that “there [was] any realistic likelihood that the Claimant’s case on Article 9 will succeed at trial”. There are, of course, important difference between the cases: (1) the concern different convention rights; and (2) the circumstances are quite different – one concerns indoor gatherings while the present context is concerned with outdoor gatherings. Furthermore, it deals with different (albeit substantially similar) statutory provisions, but with the same underlying reasoning. Despite his findings, the judge granted permission for the judicial review to proceed. There are a number of challenges in England and Wales to the lawfulness of the lockdown generally, or to particular sets of circumstances. Some, on a first appearance, are stronger than others.

Reasonable Excuse

One other matter that should be mentioned is the “reasonable excuse” defence to a charge of breaching Regulation 6. Regulation 8(5) provides the non-exhaustive list of reasonable excuses that we have all become very familiar with over the past weeks. None of the examples listed would cover a public protest; however, it is not a complete list. It would be open to argue that a public demonstration on a matter of public interest is something that falls within a “reasonable excuse”. Whether the court would accept that it was a reasonable excuse standing the reasons behind it is another question altogether. I’m not convinced that a court would find the protest as a reasonable excuse to be in a gathering of more than two people outside of the circumstances provided for in Regulation 6.

Conclusion

I am not going to say that the protests definitely are legal or illegal; that is not something that can be said with complete certainty and would, ultimately, be a matter for the courts to determine. However, while I have some concerns that a complete blanket ban on all public protests might not be convention compliant, the court is only going to be concerned with whether restricting the protest concerned was or was not a breach of convention rights. On balance, however, I think it likely that the protest would be a breach of Regulation 6 and that the interference with the Article 11 rights would be considered a proportionate means of pursuing the legitimate aim of reducing the spread of COVID-19 and that it is rationally connected to that aim. It is not the job of the courts to decide on policy, only whether the policy is lawful. There may be alternative ways of achieving that aim and the court may, if it were the decision maker, have favoured one of those other ways; however, that is not the test. If the policy decision is lawful, then the existence of another decision that the court would have preferred is irrelevant. I may, of course, be wrong on both of these matters. The issues are complex: the right to freedom of assembly is a vitally important right in a democracy, but the circumstances in which we find ourselves are truly extraordinary.

I am not going to say whether people should or should not participate in a protest this weekend. That is a matter for them. If people do attend a protest in Scotland this weekend they need to consider that doing in doing so it is likely that the will be committing a criminal offence. Equally there may be a defence to that offence or grounds to challenge the lawfulness of the regulations in terms of their compatibility with convention rights. There are processes for dealing with such arguments should anyone ultimately be prosecuted and wish to take the argument. However, they should also consider that there is no guarantee, or even a strong prospect, of those defences or challenges succeeding. I cannot, as a solicitor, encourage people to break the law.

The Scottish police have, generally speaking, handled the policing of the lockdown far better than their colleagues in other parts of the United Kingdom. What action they will take is, of course, something for them to consider. Whether they would try to breakup a protest that was peaceful, socially distanced and in which the participants were taking all reasonable precautions not to spread the virus is something that I wouldn’t like to express a view on, but I would hope that they would approach the situation proportionally taking into account that the issues are very different to, for example, the gatherings that were seen last weekend around Scotland. The Chief Constable indicated today at the Scottish Governments briefing that Police Scotland had been working with some of those involved in the protests this weekend; I would encourage (for what it is worth) anyone organising a protest to engage constructively with Police Scotland. I would also encourage anyone who attends a protest to approach any engagement that they have with the police (whether that be Police Scotland or the British Transport Police) in a courteous and constructive manner.

It is not just the protest itself that needs to be considered, but how people are getting there. The use of public transport and people travelling from some distance away to attend the protest is all something that needs to be factored in. An increased number of people using public transport to get to the protest is likely to increase the risk to those who work on the transport system and also to those who are using the transport system to get to work that they cannot do from home (in particular, NHS staff). People travelling from far and wide also, one would assume, comes with risk of them becoming carriers of the virus which could result in increased numbers of infections throughout the country. These are considerations that should not, in my view, simply be dismissed or minimised. They are very real concerns. The basis of the government’s restrictions on gatherings is to limit as much as possible contact which is likely to enable the virus to spread within the community.

Finally, none of the above should be taken as formal legal advice. It is not intended as such; it is merely a consideration of some of the issues that arise. If I were to write a full appraisal of the matter, fully referenced with authority, this post would be far longer than it already is. This blog post has gone through several iterations and when I started to write it I did so with no clear idea where it would end up; such are the complexity of the issues at hand.

Civil Liberties, Constitutional Law, Criminal Justice, Criminal Law, English Law, Human Rights, Legal System, Public Law

Coronavirus, guidance and the law

The United Kingdom, like the rest of the world, is in the midst of a public health emergency. COVID-19 is spreading through the world with devastating consequences for individuals, families and communities. Ministers in each of the four governments within the United Kingdom have made Regulations, either under the Public Health Act 1984 (England and Wales) or the Coronavirus Act 2020 (Northern Ireland and Scotland). Those Regulations can be found here:

England
Northern Ireland
Scotland (and the Scottish Amendment Regulations)
Wales (and the Welsh Amendment Regulations)

There is some difference in the form that the Regulations take, but there is very little difference in the substance of the Regulations applicable in each of the four constituent parts of the United Kingdom. I don’t intend on dealing in this post with the differences in substance that do exist between the Regulations in each of the four nations. Instead, my focus in this blog will be on something different. It will be on the difference between the guidance issued by the governments and the Regulations made by Ministers.

On social media there has been a large amount of concern expressed at the way in which the public health emergency is being policed. We’ve already seen examples of one police force arrest, detain and charge someone with an offence that didn’t even exist (the judge presiding over the case didn’t come out of it smelling of roses either) and of overly-restrictive interpretations of the law (such as only being permitted to buy “necessary” items when in the shops or only being permitted to make necessary journeys) and other examples of the law seemingly being made up on the spot (such as the South Yorkshire Police officer filmed telling people, contrary to the express words of the English Regulations, that they couldn’t be in their front garden).

I will say this before I go any further: of course there will be plenty of police officers applying the law diligently and fairly, having sensible and proportionate conversations with people in their communities; however, their good work is being over-shadowed by the poorly worded and inaccurate communications coming out from official police sources (such as social media accounts and websites). It won’t be the good work that determines the way in which the police will be viewed in light of this pandemic. What people will ultimately look at is the poor decisions, the unlawful actions and how wide-spread they were. Every poor decision, every unlawful action (no matter how well intentioned) will reflect badly on the police.

The Chief Constable of Northamptonshire Police was in the press this week declaring that the public had now had enough time to get used to the Regulations. Well, the same is true for the police. If police officers are unfamiliar with the Regulations then they should spend more time reading them and less time listening to press conferences by politicians.

There has been a considerable conflation between the guidance and the law. That doesn’t just extend to the Police, the Government has been equally unhelpful in this regard. I am not objecting to the police publicising the guidance nor am I objecting to the Police having conversations with people in their communities about the guidance. What I am objecting to is the conflation of the two. They are not interchangeable. The guidance contradicts the law in a number of areas; the guidance is far more restrictive than the law actually is. This has been known for some weeks and the law has gone uncorrected, we can therefore deduce that these difference were probably not a mistake and that the “gaps” in the law are not mistakes; instead, we must work on the basis that they were as a result of deliberate policy decisions taken by Ministers. It is not for the police, nor is it for the courts to attempt to fill perceived gaps in statutory provisions.

An example that keeps being used when the difference between guidance and law is brought up is the Highway Code. That, however, is a fundamentally misconceived comparison. The Highway Code was originally made under section 45 of The Road Traffic Act 1930. Section 38(1) of the Road Traffic Act 1988 expressly retains the Highway Code. The remainder of Section 38 makes provision for the updating of the Highway Code, including for scrutiny by Parliament of proposed amendments which are not made in consequences of the enactment, amendment or repeal of statutory provisions. Finally, the legislation expressly permits the Highway Code to be used to help prove or disprove liability in both civil and criminal cases. It is therefore a statutory code and is not an appropriate comparator for non-statutory guidance.

The guidance issued by Ministers in relation to coronavirus is non-statutory, indeed Ministers could have sought powers from Parliament when passing what is now the Coronavirus Act 2020 in order to issue statutory guidance or codes and made provision for how they should be treated. However, they did not. Where the guidance contradicts the express words of the Regulations, it will be entirely ignored by the Courts and it should also be entirely ignored by the Police when they are working out what powers the Regulations do and do not give to them.

While there are no cases from the appellate courts interpreting these Regulations we do not start from scratch when it comes to interpretation. There are clear rules, built up over a very long time, as to how statutory provisions are to be interpreted. These rules are well known to lawyers; Parliament will be deemed by the courts to have known them when passing the primary legislation and Ministers will also be deemed to have known them when making the Regulations. The phraseology used in the Regulations is clearly intended to be flexible rather then prescriptive. The lists of “reasonable excuses” expressly provided for in the Regulations is non-exhaustive and the list that appears in the Regulations is very different to the list that is repeated every day at ministerial press conferences. There is, for example, no prohibition in the Regulations on buying non-essential items (including luxury food items). Neither is there a prohibition on making “unnecessary journeys”.

Also, the UK Government has recently updated parts of its guidance in response to pre-action correspondence challenging the lawfulness of aspects of its guidance. That is a clear reminder that although the Government can issue non-statutory guidance it is constrained by the law as to what that guidance contains. It is therefore necessary to not simply look and see what the guidance says, but also to consider whether it is lawful (e.g. does it discriminate on the grounds of a protected characteristic). The courts will also, rightly, reject any part of the guidance which, while not contradictory to the coronavirus regulations, is otherwise unlawful.

The Human Rights Act 1998 still applies, it has not been amended or modified by any of the Coronavirus legislation. The Act does permit flexibility; however, legislation will always be sought to be read compatibly with it. Indeed, Secondary legislation (such as the Regulations linked to at the start of this post) is even more vulnerable to it than Acts made by the UK Parliament. It is almost certain that the appellate courts will seek to interpret the coronavirus laws as narrowly as possible given their considerable infringement upon our rights and liberties. It is unlikely to interpret it in a way that is wider than what is absolutely essential for the purpose that it was made for. Proportionality in the interpretation will be key; the courts will certainly not accept the more extreme interpretations given to them by some police officers.

I’m not just going to criticise the police in this post. I hope to provide some possible solutions to these problems; my ego doesn’t stretch to me assuming that anyone will pay the blindest bit of notice to them, but nevertheless it is important that I seek to balance the criticism with some suggestions of what the police could start doing.

The Police could help by starting to clearly differentiate between the guidance and the law in their public communications. Where they taking action in respect of criminal offences then they should leave out all mentions of the guidance and instead only refer to the law. Where they are encouraging compliance with the guidance they should leave out all references to enforcement.

Those mostly responsible within the police for public communications are not police officers, but the senior leadership of the police forces should get involved. They should be taking steps to establish protocols to ensure that confusing and inaccurate things are not published. Perhaps a senior officer with a good understanding of the Regulations could be appointed to work with the corporate communications team within the force? They could be a point of contact for the PR team so that they can run things past them before they’re published, someone who can field enquiries by the press and be the face of the local response to the policing of these Regulations. That would help to ensure clear, accurate and consistent messaging. If there isn’t a senior officer with a good understanding of the Regulations the Chief Constable could perhaps task one to spend time getting up to speed with what the Regulations say, how they differ from the guidance and where the guidance contradicts the law.

The conflation between the guidance and the law will not be helping the police logistically either. No doubt the police are being inundated with reports of conduct which, while not in compliance with the guidance, is not actually an offence. The police could probably do without unnecessary contact from the public. However, their current strategy is most likely going to be encouraging that contact by not adequately differentiating between things that they have powers to deal with and things that they are powerless to deal with. As police resources become stretched they will require to direct those resources towards people actually breaking the law (whether that be the coronavirus laws or other offences such as assaults, sexual offences, thefts etc.). So, changing their communications strategy is also in their interests from a resources perspective.

Finally, there is no contradiction at all in saying that people should seek to follow the governments’ guidance and apply common sense while at the same time the police should not be confusing the law with the guidance and should only seek to enforce the law. As an asthmatic who is entitled to the flu vaccination on the NHS each year I am in the “high risk group” (although I don’t fall into the very high risk category as my Asthma is generally well controlled). I’ve been following the government’s guidance. I’ve not left my property since Monday (when I went to buy food from the shops). I’ve been engaging in social distancing since before the laws were made. Indeed, by the time the Scottish Regulations were made (which are the ones that directly apply to me and to my life) I had already been in “lockdown” for over a week. Personally, I would quite like it if everyone just stayed at home so as to reduce the risk to me of contracting this virus. However, as a lawyer I am a firm believer in and supporter of the rule of law. It is sacrosanct; especially in emergencies. The rule of law is what makes us a democratic society rather than a totalitarian one.

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).

Constitutional Law, Criminal Justice, Criminal Law, Human Rights, Legal System, Politics, Public Law, Scots Law

Statutory Judicial Directions in Sexual Offences Cases

In all democratic countries there is a very clear separation of powers between the Executive, Legislature and Judiciary.  This is important so as to ensure that there are proper checks and balances on power and is really quite fundamental so as to ensure an effective democracy.  It is so fundamental that when the Scottish Parliament embarked upon a programme of restructuring the judiciary, it set out in section 1 of the Judiciary and Courts (Scotland) Act 2008 that the judiciary are to continue to be independent of the First Minister, the Lord Advocate, the Scottish Ministers, Members of the Scottish Parliament and others.

Judicial independence and impartiality flows from the doctrine of the separation of powers which is so fundamental to democracy.  It is important that the judiciary is totally independent from the Executive and the legislature.  Although judges in Scotland are appointed by Her Majesty the Queen, they are done so after having been selected by a body independent of the State, the Judicial Appointments Board for Scotland.  Neither the legislature nor the Executive play any role in the appointment process, other than by setting out the qualifications required to be a judge (see Chapter 3 of the Judiciary and Courts (Scotland) Act 2008).

This independence means that neither the Scottish Ministers nor the Scottish Parliament should seek to interfere with the independence of the Judiciary.  Parliament serves two primary functions: to make laws and to hold the Executive to account.  The Judiciary interprets and applies the laws made by Parliament and also holds Ministers to account.  Finally, Parliament holds the judiciary to account by having the power to change laws when the Judiciary interpret either the common law or statutory provisions in a way that Parliament considers is wrong.  It is rightly difficult to remove judges from post, their independence would be threatened if it was far too easy to remove them; it might make judges less able to perform their important function of holding the Executive to account, for example.  These three parts of the State work together (not always harmoniously, but that is to be expected) to ensure that the State does not over exert its powers and that no part of the State becomes too powerful.

The impartiality is also of huge importance and two-fold.  Firstly, the judiciary must be politically impartial.  It is for this reason that when lawyers become judges they must sever ties with any political parties that they may well have had connections to.  They should not be seen to make political comments, whether in the press, in speeches or in their judgments; especially if such comments align themselves with a particular political position or party.  Their impartiality also extends to the parties before them.  They must be careful not to be seen to be supporting one side or the other in any way.  That is not an easy task.

There is currently a proposal before the Scottish Parliament that may impact, in a negative way, both the impartiality and independence of the judiciary.  Section 6 of the Abusive Behaviour and Sexual Harm (Scotland) Bill seeks to insert a section into the Criminal Procedure (Scotland) Act 1995 that would require judges to give specific directions in certain sexual offences cases.  Those directions are undoubtedly well-meaning and seek to address common misconceptions about complainers in sexual offences cases, especially around any perceived delay in making the allegation to the police and how they react during the alleged offence.  However, simply because they are well-meaning and seek to serve a wholly commendable purpose does not mean that they should not be enacted or questioned.  In my view the potential constitutional difficulties that they present far outweigh the benefits, especially when there are other ways to achieve the same aim that do not impugn upon fundamental constitutional principles.

Independence

These statutory provisions would require Judges to include specific information in their charges to juries in sexual offences cases.  This is something that clearly crosses the line in the separation between Parliament and the Judiciary.  This is wholly different to Parliament telling judges that they have come to the wrong conclusion as to what the law is by passing substantive statutory provisions.  It is Parliament expressly dictating to judges how they should do their job.  We should always prevent Parliament from taking such steps.

Impartiality

The Directions which Parliament proposes judges should make in their charges are well founded in evidence.  However, what they seek to do is bolster the credibility of the principal crown witness in a sexual offences claim (i.e. the complainer).  It is entirely appropriate that we seek to remove any myths about complainers in sexual offences cases; only when we do so can we move towards a position where those who have suffered at the hands of a sex offender can get a proper shot at receiving justice.  When a judge is giving their charge to the jury they set out plainly what the law is in respect of the offence(s) contained in the Complaint/Indictment, explain to the jury the three possible verdicts open to them, the concept of reasonable doubt and finally that a majority of the jurors must be satisfied beyond reasonable doubt of the accused’s guilt before they can convict the accused.  In a jury trial the judge is there to deal only with matters of law and procedure; they are there to ensure that both the prosecution and the defence act and are treated in a fair manner, as well as making rulings on issues of law and procedure and setting out the law to the jury that they need to apply to the evidence they have heard in court.

One of the factors that jurors need to weigh up in reaching their verdict is the credibility of not just the complainer, but every other person who has given evidence before them.  Only once they have assessed the credibility of a witness can they decide whether to believe them and how much weight to accord their evidence.  It is clear therefore that the credibility of the complainer in any case, including a sexual offences case, is of central importance to the jury.  In my view it therefore follows that any comment by a judge that seeks to bolster the credibility of a witness (regardless as to whether they are the complainer or the accused) impugns upon their impartiality from the parties to the case (in this situation, from the Crown).

How else can this issue be addressed?

As I have already stated, there are many myths around the conduct of sexual offences complainers – including around how quickly they make the allegation official and issues about their actions and reactions while the alleged offender is committing the alleged offence.  A complainer who makes their allegation quickly should not automatically be presumed to be more honest that one who waits weeks, months or even years to make their allegation.  It should not be relevant whether or not a complainer made attempts to fight the alleged offender off.  These are the issues that these proposed jury directions seek to address.

In my view, these can be addressed in ways other than by requiring judges to set out a case bolstering the credibility of the complainer in their charge to the jury.  The issue of the credibility of the complainer, or rather the task of presenting the complainer as a credible witness, lies with the Procurator Fiscal Depute or Advocate Depute who is prosecuting the case.  Therefore, we ought to be looking at ways to put this evidence before a jury; whether that is by obtaining it through a witness such as a specially trained police officer or an expert such as a psychologist.   It wouldn’t necessarily be essential to require a complainer to explain why they didn’t make an attempt to fight of the alleged offender or why they delayed in making the report; although, these matters may well be explored during the complainer’s evidence in either examination-in-chief or cross-examination.

Addressing this issue in the way I have described would ensure that what is essentially a question of fact for the jury (that being, the assessment of the credibility of the witness) is treated as such and is not dressed up as being a matter of law being dealt with by the presiding judge.  It would also ensure that points of view that might well be held by the jury, which are not supported by evidence are properly addressed.  Finally, it would ensure that the independence and impartiality of the judiciary is properly and rightly preserved.

It is therefore my view that the Scottish Parliament should remove section 6 from the Abusive Behaviour and Sexual Harm (Scotland) Bill.

Constitutional Law, Devolution, English Law, Environmental Information, FOIA, FOISA, Freedom of Information, Human Rights, Information Law, Information Rights, Legal System, Public Law, Scots Law, UK Constitution

The Black Spider Letters – Part IV

This is the final in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General.  The first post went through the background to the case, the second post focused on the Court’s decision in respect of section 53 of the FOIA and the third post looked at the Court’s decision in respect of Regulation 18(6) of the EIRs.

This was a significant decision for a number of reasons.  It significantly restricts section 53 of the FOIA and in essence makes it virtually impossible for the Executive to make use of it.  While this might seem, on the face of it, really good for transparency; it comes with a serious warning.  In 6 weeks time the UK will have a new Government and undoubtedly one of the first things that this new Government will want to do is address the decision of the Supreme Court in this case.  The current Government, which may be in its final hours, has previously hinted at making changes to the FOIA that would have a devastating effect on the effectiveness of FOI in the UK.  While addressing this issue the Government might be tempted to make other changes to FOI at the time.

While I fundamentally disagree with the principal that the Executive should be able to veto a decision made by the judiciary in respect of a cause in which it was a party, we do live in a system where Parliament has supremacy.  It is clear that Parliament intended that the Executive should be able to, in certain cases, veto a decision by the Tribunal that information should be disclosed.  For that reason, I disagree with the interpretation given to section 53 by Lords Neuberger, Kerr and Reed.  I find the position of Lord Mance and Lady Hale more in keeping with the intentions of Parliament.  It is my opinion that they struck the right balance between the intention of Parliament and the Rule of Law given the system in the UK and the wording of the statute.

The Regulation 18(6) issue is more problematic for the Government, and here I do think that the 6 Justices of the Supreme Court who held that Regulation 18(6) was incompatible with EU law got it correct.  The wording in Article 6 of the Directive clearly does not envisage the situation where the Executive, who will be the public body holding the information in question, is able to veto the decision of the Court.  It also seems clear from the wording of the Directive that it being open to a requester to judicially review the decision of the Executive to issue a certificate is not sufficient to comply with the review requirements therein.  Part of being a member of the European Union is to accept that EU law has supremacy, in passing the European Communities Act the UK Parliament agreed to have EU law take precedence over Acts passed by it.  Ultimately the UK Parliament is still supreme and would only need to repeal the European Communities Act (which would also necessitate the UK leaving the European Union, but that’s a whole other blog) in order to deal with the Supreme Court’s decision in respect of Regulation 18(6).

What is the impact for Scotland?  The decision in R (Evans) v HM Attorney General is technically not binding upon the Scottish Courts.  Section 41(2) of the Constitutional Reform Act 2005 makes it clear that decisions of the Supreme Court on appeal form Courts in one part of the United Kingdom are “to be regarded as the decision of a court of that part of the United Kingdom”; there is an exemption to this which is not relevant here. Therefore, only decisions issued by the Supreme Court in Scottish cases are considered binding in Scotland (although in cases from other parts of the UK will be highly persuasive on the Scottish Courts).  As this was a case on appeal from England in respect of FOIA and the EIRs, it is only binding on the Courts in England and Wales.

Section 52 of the Freedom of Information (Scotland) Act 2002 (FOISA) provides the First Minister a similar power to that contained in section 53 of the FOIA in respect of decision notices served on the Scottish Administration.  The wording in section 52 is almost identical to that in section 53.  The main difference is around timescales, in that the First Minister has longer than the accountable person under FOIA to issue a certificate.  So, section 52 of FOISA is probably in a precarious position following the decision of the Supreme Court.

The Scottish legislation could face further hurdles that the UK legislation did not due to the constitutional position of the Scottish Parliament.  The Scottish Parliament is a creature of Statute, it has only those powers which are given to it by the UK Parliament and cannot do anything which exceeds those powers.  Section 29(2)(d) of the Scotland Act 1998 provides that no Act of the Scottish Parliament may be incompatible with the rights in the European Convention on Human Rights as given effect to by the Human Rights Act 1998.  There could be a viable challenge to section 52 under Articles 6 (the right to a fair trial) and 10 (freedom of expression).  If it were to be found that the Scottish Administration being able to veto the decision of the Commissioner and/or the Courts was incompatible with either or both of those Rights then section 52 would have no effect as it would be outside of the Scottish Parliament’s legislative competence.  It would be much harder for the Scottish Parliament to get round that, and it would probably require the UK Parliament to legislate on its behalf.

Regulation 17(2)(e) of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs) has the same effect as Regulation 18(6) of the EIRs in that it applies section 52 of FOISA to the Scottish EIRs.  However, like the EIRs, the Scottish EIRs are designed to implement the 2002 Directive into domestic law.  The supremacy of EU law is further underlined by the Scotland Act 1998, which provides in section 57(2) that the Scottish Ministers have no power to make subordinate legislation (which the Scottish Regulations are) which is incompatible with EU law.  I don’t think that the Scottish Courts would find differently from the Supreme Court in respect of section 52 being incompatable with EU law when related to requests under the Scottish EIRs.  In the event that the Scottish Ministers appealed to the Supreme Court it seems unlikely that it would conclude differently (although it should be noted that at least one Justice would have found that Regulation 18(6) did not violate EU law).

Because of the timing of the Supreme Court’s decision, it means that there is little that can be done to prevent disclosure of the information that the Upper Tribunal decided should be disclosed.  The UK Parliament has now prorogued and dealing with the Supreme Court’s decision will require primary legislation. Parliament will be dissolved as soon as we hit 30 March; that means all of he seats will become vacant and there will be no MPs to pass legislation.  The deadline for the Government to comply with the Supreme Court’s decision expires before the election. Therefore, it seems almost inevitable that we will get to see the contents of these letters.

It should be noted that FOIA has been amended to make the correspondence from the Prince of Wales subject to an absolute exemption.  However, that does not affect the position under the EIRs.  The exceptions under the EIRs are different from the exemptions under the FOIA, although they broadly enable the same types of information to be withheld.  What this means though is that it is possible that further letters written by the Prince of Wales which relate to environmental matters may be disclosed in the future.

It is also worth noting that FOISA has not been amended to make the equivalent exemption in respect of correspondence with the Monarch, the heir to the throne or the next in line (i.e. The Queen, Prince Charles and Prince William) an absolute one.  It had been proposed by the Scottish Government, but was dropped.  Therefore, the full range of correspondence between the Prince of Wales and the Scottish Ministers is theoretically obtainable under FOISA and the Scottish EIRs, subject to the public interest test.

Civil Law, Civil Liberties, Constitutional Law, Criminal Justice, Criminal Law, English Law, Human Rights, Legal System, Scots Law

A quick defence of legal aid

The debates around legal aid in Scotland earlier this year and in England over the last year have been characterised by a number of clear misconceptions by the public at large.  There is a view that legal aid exists only to make ‘lawyers rich’ and that the vast majority of those receiving legal aid are in some way ‘undeserving’.  These views are of considerable concern as the simply enable Governments in Edinburgh and London to press ahead with legal aid ‘reforms’ that will substantially damage the country.

Legal aid seems to get lumped in with job-seekers allowance, housing benefit, council tax benefit and such like (I have even, on more than one occasion, seen comparisons drawn between legal aid and the NHS); these comparisons are illogical and ignore fundamental aspects of legal aid which set it apart from any other government spending.

Equality before the law is fundamental to ensuring access to justice.  The ability of all (and not just the rich) to access the legal system is of fundamental constitutional importance.  The ability of individuals to defend themselves against the power of the state (whether in civil or criminal proceedings) and to challenge the state through Judicial Review are essential to our constitution.  Without this ability we are not a liberal democracy.  The issue of access to the law isn’t only confined to making it possible to bring or defend a claim, but it has to create a realistic ability to access the law.  That means providing good quality representation (and importantly permitting those bringing or defending a claim to select their own law agent).  Without client choice you are left in a situation where the State is selecting the representatives of those who it is brining a claim against or whom it is defending a claim against.  If you were suing your mobile phone provider and had to use the solicitor that they selected for you, you would instantly see a conflict of interest.  However, that same conflict does not seem to be as apparent when the State is involved (although it is there and just as important).  There has to be equality between the parties in the legal system and for those who cannot afford to pay their own legal fees it is left to the State to ensure fair access to legal representation.

In criminal cases, it is about defending yourself against serious accusations made by the State.  The consequences of conviction are, quite rightly, serious.  Conviction can lead to a loss of employment and a loss of liberty.  Not everyone who gets legal aid in criminal cases is guilty, a great many people are innocent and it is important that they are able to robustly challenge the State who has to prove their allegation.  It’s about ensuring fairness in the system; an individual against the might of the State (with the police and a professional prosecution service for back-up) is not a fair fight.  Legal representation is essential to ensure fairness (whether they are guilty or not).  It might be unpopular to see guilty people get vast sums of public money to defend themselves, but isn’t that a price worth paying to ensure that we have a fair and balanced system ensuring that, as far as is possible, only the guilty are convicted?

Judicial Review is very much disliked by the Government, as should be expected.  Judicial Review is the citizen challenging a decision made by the Government; it’s about ensuring that the Government only takes decisions which are legal.  It is an area under attack by the Government and it is vitally important.  Without effective access to judicial review, the State can go unchecked and be able to take decisions which are illegal.

The need for access to legal aid does not just extend to cases which involve the State.  Individuals seeking to enforce their contractual rights against a company or gain compensation when a company is at fault and they have lost out as a result or to enforce their consumer rights need to have the ability to seek recourse in the courts when pre-litigation action fails to achieve a result.  Without the ability to go to Court and seek a legally enforceable court order to enforce their rights, the rights that they have are effectively meaningless.  The threat of litigation can prevent litigation.  The knowing that an individual can seek recourse to the Court in order to give effect to their rights can be enough to make people comply with their obligations.  Without that effective recourse, people will be free to ignore their obligations with impunity.

Legal aid and access to justice go to the very heart of our constitution and democracy.  It’s not a benefit; it’s a constitutional right  Legal aid is much more important and serious that housing benefit or job seekers allowance (as important as those are); it’s fundamental to our society.

Contempt of Court, Criminal Justice, Criminal Law, English Law, Human Rights, Politics

Anonymity upon arrest

The naming of suspects by police at the point of arrest and charge has become a hot topic.  The Home Secretary has written to Chief Executive Officer of the College of Policing, Alex Marshall, expressing her concern about the different policies operated by different forces in England and Wales.  She wants it made clear to forces that unless there are very good public interest reasons for naming suspects who have been arrested, it shouldn’t happen.  The press have repeated concerns that this amounts to some kind of ‘secret justice’.

I really have little concern about suspects under arrest who have not been charged remaining anonymous.  Far too often we see examples of the press effectively having a trial which convicts the person while that person is still in police station being questioned in connection with an alleged offence.  By the time this person is then released from the police station their reputation has been destroyed, even if they are entirely innocent of any involvement in any crime.

Persons who have been arrested and not named do not fall into some big black hole; indeed millions of people are arrested in England and Wales every single year and very few are named at the point of arrest (in fact very few are named publically at any point, even after conviction).  There are important rights, protected by law, which mean that it is impossible for someone to be secretly arrested.  Those arrested have the right to have someone informed of their arrest and are entitled to legal representation; although both of these can be delayed, they are still rights which have to be exercised eventually if the arrested person wishes to exercise those rights.

It has been argued that naming a suspect at the time of arrest allows further victims to come forward, but so would naming them at the time of charge.  There is nothing stopping the police from arresting the person again in connection with different allegations that come to light after they have been charged.

In effect what a policy of anonymity for suspects under arrest would prevent is the press from publishing endless stories ‘monstering’ a person over something they may or may not have done.  We should perhaps be more than a little suspicious of the motivation of the press on this story; evidently ‘monsetring’ stories are the type of stores that make newspapers (particularly tabloid newspapers) sell.  Such a motivation cannot be ruled out of the press opposition to a move towards anonymity of arrested persons.

The clearest example of this was that of Christopher Jeffries, the man who was wrongly arrested on suspicion of murdering Joanna Yeates.  What followed, while he was still in police custody being questioned, was a press frenzy which painted him as a deviant, gave the impression that he was a nasty individual and by implication that he was clearly Joanna Yeates’ killer.  However, he was later released from police bail (having never been charged) and won substantial damages from eight newspapers for libel.  The Attorney General also prosecuted two newspapers for contempt of court, both of whom were found to be in contempt.  Another mab, Vincent Taback, eventually convicted of her murder and is currently serving life imprisonment.

Charging a person with a crime is a formal process; it is when criminal proceedings begin against a person.  From the point that a person is charged it is clear that the Contempt of Court Act rules kick in.  These rules provide sufficient protection in respect of the person’s right to a fair trial and news stories which are sufficiently prejudicial could even cause the collapse of a trial (although that is rare and it would have to be something of great significance).  The only cases where publishing the names of people who have been charged with an offence which causes me to pause and really think are those accused of sexual offences.  With sexual offences, more than any other offence, there appears to be a guilty until proven innocent mindset amongst general pubic; there is no smoke without fire, so to speak.  However, there are strong arguments in favour of anonymity and disclosure in those cases and it is a finely balanced argument.  Although I have argued in favour of anonymity before, I now believe that the arguments in favour of disclosure are slightly weightier.  However, in sexual offences cases I do feel that the authorities responsible for bringing cases in respect of alleged contempts of court have to be more pro-active.  Perhaps also providing for a possible (short) custodial sentence for editors who are guilty for allowing a seriously prejudicial story to be published (i.e. that type of story that causes or is seriously likely to cause the collapse of a whole trial) might make editors slightly more responsible around high profile cases.

It would be entirely right for the police to move to a system of neither confirming nor denying to the press whether they have a specific person in custody under arrest.  This gives the police the space to conduct that initial investigative phase and it will minimise the reputational damage done to those who are innocent and unfortunately arrested.  Without confirmation from the police of the name of the person in custody it is unlikely that the press will publish any name that they do have.  However, if such a move did not stop the press frenzy that we currently see around arrested persons, I would certainly not be adverse to Parliament passing legislation which specifically prohibits the confirming of names of arrested persons outside of a set of clearly defined circumstances where it really is in the public interest (and that’s not what the public are interested in) to release the name at such an early stage.

We do have a system of public justice and it is important for both the public and those accused of crimes that trials happen in the public eye.  This is not so that the public can gawp and stare and slander individuals accused of crimes, but so that the public can see that justice is being done and to protect those accused of crimes from oppressive state practices.

English Law, Human Rights, Scots Law

The UK and the ECtHR: 2012 statistics

The Council of Europe (the body responsible for overseeing the European Convention on Human Rights) has published a document reviewing the cases handled by the European Court of Human Rights relating to the United Kingdom in 2012.  The document makes for interesting reading and rides a coach and horses through the lies and spin reported by the press in the United Kingdom – don’t expect to see the details of this report discussed in the House of Commons, in the Daily Mail or on the BBC.

During 2012, the European Court of Human Rights (ECtHR) dealt with a total of 2,082 applications concerning the United Kingdom of which 2,047 were either declared inadmissible or struck out.  This means that the Court refused to deal with, for one reason or another, more than 98% of the applications concerning the United Kingdom that it dealt with last year.  Of the 24 judgments (concerning 35 applications) that it did make, at least one violation of the convention was found in just 10 of those cases.  That means, of the judgments issued, 59% found entirely in favour of the Government while 41% found partially or wholly against the Government.  Putting those figures into the wider context, the UK partially or wholly lost in less than 0.5% of applications against it handled by the ECtHR last year.

It is argued by some that the ECtHR interferes too much in our domestic affairs; that contention cannot stand when put alongside the figures released by the Council of Europe.  The fact is that the Court chucks out the vast majority of the cases made against the United Kingdom without even issuing a judgment, and where it does the majority find wholly in favour of the Government.

Of course, the Human Rights Act 1998 (HRA) has to be taken into consideration as well when placing the effect of the Court in context.  Section 2(1)(a) requires UK courts and tribunals to “take account” of judgments, decisions, declarations or advisory opinions of the ECtHR when determining questions which have arisen in connection with a convention right (which for the purposes of the HRA are only those rights listed in Schedule 1 to the HRA).  That impact is slightly harder to quantify than the direct effect of the ECtHR on the United Kingdom through the judgments it issues concerning the United Kingdom.  However, the direct effect is extremely small and disproves some of the hysteria around the convention, especially that hysteria which says the ECtHR is frequently finding against the UK; it finds in favour of the UK Government more than it does against it.

The truth is the media only ever report the more contentious decisions, especially those which the Government have lost.  If you’re only hearing one side of the story you are going to end up with a rather unbalanced and biased view of things.  The question is, how do you counter the unbalanced and biased reporting?  Is it even possible to do so?

Constitutional Law, English Law, Human Rights, Legal System, Politics, Scots Law

Abu Qatada and the Rule of Law

The latest episode in the saga that is the case of Othman (Abu Qatada) v the Secretary of State for the Home Department occurred today when the Court of Appeal refused the Home Secretary leave to appeal against the Court of Appeal’s earlier judgment to the Supreme Court.

The facts of this case are well rehearsed so I feel that I don’t need to go over them again.  As one would have expected, the Court of Appeal’s refusal to grant leave to appeal caused an uproar on the internet (and this was probably no doubt replicated in homes, pubs and offices around the country).  Let me be clear, I am no fan of Abu Qatada.  He is alleged to have committed some very serious crimes and it is right and proper than he faces trial in Jordan for those crimes.  However, it is equally right and proper that the United Kingdom upholds the law of the land, international law and its other international responsibilities.

Predictably, a lot of the comments were directed towards the judiciary and their apparent failings.  However, I would suggest that this is the wrong place to direct criticism towards.  The law is clear and it is for the judges to apply the law and to uphold the law.  Judges are not there to make or to change the law; that power lies with the Government and Parliament.  If courts are consistently finding against the Government on the same point of law, it would suggest that any problem that exists does so either with the law or the legal position of the Government.  In both scenarios only the Government, not the judiciary, can change the situation.

The Court is there to apply the law as enacted by Parliament and to uphold the rule of law.  They don’t take sides in any legal debate; they are not on the public’s side, the Government’s side or the side of any other party.  They are an independent tribunal charged with applying the law to a particular set of facts and to determine who, in law, is right and who is not.  The Appeal Courts are there solely to interpret the law which is then to be applied to the facts of each case by the lower courts.  They’re not there to look at whether a Court or tribunal below was right to conclude that a particular fact is indeed a fact or whether it is not; they are there simply to ensure that the lower courts and tribunals are applying the law correctly and to resolve any ambiguities in the law.

The Supreme Court only considers what are termed ‘points of law of general public importance’; those are legal questions and conundrums that affect a wide number of people in society.  They will look at serious legal questions and determine the law so that it is clear for all in our society and so that the lower courts are applying it consistently to all.

The Government is, like each one of us, subject to the law.  It does have a slightly more empowered position than the ordinary citizen has, in that should it lose a case in court it can (with the consent of Parliament) pass legislation to reverse the decision.  In this increasingly global world though, the Government (and Parliament) is somewhat restrained in what changes to the law it can make.  The United Kingdom has signed up to various international treaties, including many human rights ones (although we only ever really hear about the European Convention on Human Rights it’s not the only one we are signatory to) and then there are other principles of international law that the United Kingdom has to comply with as well (see my post on the ECHR, Abu Qatada and international law).

It is quite right that the Government is subject to the law in the same way that ordinary citizens are subject to the law.  If it were not, the Government would be extremely powerful with no real check or balance on its power and it would be impossible to effectively hold the Government to account.  There are countries where the Government is outside of the law (either constitutionally or because of the political situation is effectively outside of the law because the judiciary turn a blind eye).  When you look to those countries you soon realise that such a situation is not one which you want in this country.

Abu Qatada (and people like him) wants to destroy democracy and bring tyranny to the ‘West’; the Rule of law is fundamental to democracy.  If we suspend the Rule of law and start to allow the Government to ignore the law and judges to turn a blind eye to the Government ignoring the law the terrorists have effectively won.  Is that what you really want?

Human Rights, International Law

ECHR, international law and Abu Qatada

Last week it was reported that the Home Secretary wanted to take the UK out of the European Convention on Human Rights (ECHR) and this week she repeated that objective, if the Tories won the 2015 election.  Her cabinet colleague Chris Grayling (Secretary of State for Justice and Lord Chancellor) has said that the Tories will repeal the Human Rights Act 1998 (HRA) should they win the 2015 election.  The HRA and ECHR has become the place for politicians (particularly from the right of politics) to lay the blame when they don’t get their own way.  The very point of the HRA and the ECHR though is to prevent the State from acting in a way that is incompatible with basic rights and freedoms recognised as being essential in a free and democratic society.

One of the most recent frustrations of the UK Government is the inability of it to return Abu Qatada to the Kingdom of Jordan where he is wanted on terrorism charges.  Abu Qatada’s fundamental rights applicable to him as a human being have thus far prevented him from being deported from the UK to the Kingdom of Jordan (although the Special Immigration Appeals Commission prevented his extradition on the basis of his right to a fair trial over fears evidence obtained through torture would be used in his trial).  However, the ECHR is not the only prohibition in relation to torture.

There is an internationally recognised prohibition on torture.  This prohibition has achieved jus cogens status.  Jus cogens is a fundamental principle of international law which is accepted by the international community as a norm from which no derogation is ever permitted.  In other words, there are no circumstance under international law in which it is permissible to torture an individual; even someone who is as odious as Abu Qatada is alleged to be.  The International Criminal Tribunal for the Former Yugoslavia recognised the prohibition of torture as having achieved jus cogens status in international law in its decision in Prosecutor v Furundzija (see paragraph 153).  This means that the UK is bound by international law not to torture anyone.  Of course, it never was the case that the United Kingdom had or was going to itself torture Abu Qatada; however, that brings us onto another principle of international law: non-refoulement.

Non-refoulement is a principle of customary international law.  Customary international law arises from custom; which is an established pattern of action or behaviour that can be objectively verified.  In the international context it refers to the legal norms that have developed through the customary exchanges between states over time.  It is considered by the International Court of Justice (ICJ) and the United Nations as one of the primary sources of international law.

Non-refoulement as a principle is concerned with prohibiting the sending of one individual from one State to another where they will be tortured or face serious irreparable harm.

The principle of non-refoulement is primarily concerned with the area of international law covering refugees.  The 1951 Convention on the Status of Refugees specifically prohibits non-refoulement in Article 33.  However, it has been included in other international treaties such as the United Nations Convention against Torture or other cruel, inhuman or degrading treatment or punishment (CAT).  Article 3 of CAT clearly prohibits the expulsion, return or extradition of a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture”.  The United Kingdom signed CAT on 15 March 1985 and ratified it on 8 December 1988.  There is an argument to be made that non-refoulement is at the very least customary international law if not jus cogens.  However, the UK is bound by its obligations under CAT even if it were not considered to be customary international law or jus cogens.

Essentially, with or without the ECHR the United Kingdom would have been bound by international law not to extradite Abu Qatada to the Kingdom of Jordan while there were substantial grounds for believeing that he would have been tortured.  Without the ECHR though there would have been no effective remedy for Abu Qatada to force the United Kingdom to adhere to its international obligations.  That is because the United kingdom is not signatory to the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR; which also prohibits torture and non-refoulement) thereby preventing him (or indeed anyone else) from pursuing a case before the Human Rights Committee (the body responsible for the interpretation and enforcement of the ICCPR).  The UK does not accept the right of individuals to petition the Committee against Torture (responsible for CAT) under Article 22 of CAT.  The ICJ is only for disputes between states and an individual is therefore unable to pursue a claim before that Court against a State.  Without the HRA Abu Qatada (or indeed anybody else) would be unable to pursue human rights claims before the UK Courts.  In other words, the United Kingdom would be free to act against its clear international obligations.

What is the point of all of this?

The main point is to illustrate that the ECHR is not some unusual document in what it does.  There is a substantial body of international law protecting the human rights of individuals.  The United Kingdom is under an international obligation not to torture an individual and also not to expel, extradite or return an individual to a state where they are likely to be tortured (or face irreparable harm).  With or without the ECHR the UK would have faced enormous international pressure not to transfer Abu Qatada to the Kingdom of Jordan while there was a substantial risk of him being tortured by the Jordanian authorities.

The international law exists to protect individuals; especially individuals, like Abu Qatada, who are at substantial risk of torture because of their activities.  Domestically we have the HRA incorporating elements of the ECHR into our law.  It’s not perfect and there is a lot more that could have been included into the HRA to make it a fuller human rights document.  However, it is a substantially good thing and it largely reflects the position in international law.

The Tories simply want to leave the ECHR to avoid situations like Abu Qatatda; in essence to decide just who human rights apply to and who they don’t apply to.  It’s not about reclaiming British sovereignty, but rather about trying to create a situation where they can breach international law with little or no international intervention to prevent it from happening (i.e. being able to do exactly what they want when they want).

Leaving the ECHR would almost certainly increase the pressure on the UK to adopt optional protocol 1 to the ICCPR or permit individuals to refer matters to the Committee against Torture under Article 22 of CAT.  If the UK left the ECHR and did not undertake one of the two options just mentioned it would become one of very few states with no substantial international oversight of the way it treats those within its jurisdiction and that would be an unfortunate position to be in.