Joshua Rozenberg
c/o Noel Gay
19 Denmark Street
London WC2H 8NA




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May 28, 2009

What's it all about, All-fee?

This column in the print edition of Standpoint magazine is a piece about legal costs for people who don't know about English law and don't care about who pays for it.

Posted at 11:06 PM | Comments (0)

May 27, 2009

What if?

Despite his recent retirement from the judiciary, Lord Hoffmann is continuing to create controversy. Two of his former colleagues have attacked his views on human rights. But he is not without friends: a well-known solicitor has accused me of presenting an “incomplete picture” of Lord Hoffmann’s role in the Pinochet litigation.

So let me complete the story. But first ― human rights. You can read Lord Hoffmann’s lecture to the Judicial Studies Board by going to this website and scrolling down to April 1 (though the lecture was delivered on March 19).

In Lord Hoffmann’s view, the European Court of Human Rights “lacks constitutional legitimacy”. I took a pretty dim view of this argument in my monthly column for Standpoint magazine ― though I was more impressed with Lord Hoffmann’s view that that the European Court should be slow to interfere when a national court had properly taken account of Strasbourg rulings.

The law lord’s lecture did not go down very well with his colleague Baroness Hale – as she made clear last week when she launched the third edition of Human Rights Law and Practice by Lord Lester, Lord Pannick and Mr Herberg (can his peerage be far off?).

But for a fully reasoned critique of Lord Hoffmann’s comments I recommend the Hailsham Chambers lecture, delivered by Lady Justice Arden on May 12.

She devoted most of her remarks to the effect of the Human Rights Convention on the law of tort. But then she turned to the former law lord.

“The principal issue raised by Lord Hoffmann,” she said, “is whether the Strasbourg court should exercise more restraint about ruling on individual cases that affect established legal principles or practices in the contracting states. However, the Strasbourg court already affords contracting states some measure of discretion about enforcing the standards it sets through what is called the margin of appreciation...

“No doubt the doctrine of the margin of appreciation could be developed so as to give the contracting states more freedom to decide cases without interference, but one can readily understand that, from the point of the view of the Strasbourg court, there have to be limits on the margin of appreciation. Otherwise it would be liable to lead to a lowering of human rights standards in some countries.”

Lady Justice Arden was particularly scathing about Lord Hoffmann’s reference to a case in which the Human Rights judges had found a violation of article 6 because a defendant had been convicted largely on the basis of hearsay evidence given by a witness whom he had not been able to cross-examine.

“Lord Hoffmann finds it extraordinary that the Strasbourg court should have reached this conclusion given that the matter was governed by legislation that had in turn been informed by the work of the Law Commission,” she noted. But what Lord Hoffmann had not pointed out was that the Law Commission had warned ministers at the time that a breach of the Human Rights Convention was possible. And she should know: Dame Mary Arden chaired the Law Commission at the time.

Let’s move on to the Pinochet debacle. In a piece for the Law Society Gazette, I recalled Spain’s attempt to have the former Chilean dictator extradited on charges of torture and hostage-taking.

This drew a letter from Sir Geoffrey Bindman, published in the Gazette last week. In it, Sir Geoffrey plays down Lord Hoffmann’s failure to declare his interest in a company set up to support a party to the case. At the time, nobody had suggested that the judge should stand down, Sir Geoffrey tells us.

But this misses the point. First – despite what Sir Geoffrey says – it is my understanding that Pinochet’s lawyers did not know at the time of Lord Hoffmann’s involvement as chairman and director of Amnesty International Charity Ltd. As I recall, the law firm Kingsley Napley – which represented him – had received and responded to a letter from the charity. This letter bore Lord Hoffmann’s name. But that is hardly enough to deem those representing Pinochet as having actual knowledge of Lord Hoffman’s involvement in one of the parties.

(Update June 4: Kingsley Napley has now confirmed my account).

Secondly, I never argued that Lord Hoffmann should have stood down. As I explained, “the normal thing for a judge to do in such circumstances is to declare an interest and invite the parties to object or acquiesce”.

Sir Geoffrey claims that Lord Browne-Wilkinson and his fellow law lords “thought the reputation of our legal system was best upheld by throwing Lord Hoffmann to the wolves”. On the contrary, it was Lord Hoffmann who jeopardised the reputation of our legal system; re-opening the case before a new panel of judges was the only way to salvage it.

As Sir Geoffrey says, the Hoffmann challenge did not save Pinochet from extradition; instead, he managed to persuade doctors that he was unfit to stand trial. But what if Lord Hoffmann had declared his interest? The outcome might have been very different – and not just for Pinochet.

To avoid any suggestion that the panel had been packed with the General’s supporters or opponents, it had been decided that the law lords would sit in strict order of precedence. The senior law lord, Lord Browne-Wilkinson, was unavailable. So the case was heard by the next five on the list. If Lord Hoffmann had stood down in good time, his place would have been taken by Lord Hope, one of the law lords who found against General Pinochet when the case was reheard.

And what if Lord Hoffmann had spoken up when the case opened on November 4, 1998? Assuming that Pinochet’s lawyers had asked him to stand down, there would probably have been an adjournment for a few days. By then the chances are that Lord Browne-Wilkinson would have become available to sit. He took the view that Pinochet had only limited immunity from extradition. Either way, then, the case would still have gone against the General.

But the outcome could have been totally different. Whether Lord Hoffmann had been replaced by Lord Hope or Lord Browne-Wilkinson, the appeal would have been heard — and dismissed — by the end of November 1998 or very shortly afterwards.

But it wasn’t. First of all, the law lords had to set aside their earlier decision. Then the case had to be re-heard. On both occasions, Lord Browne-Wilkinson was in the chair.

The strain on him must have been immense. The world was looking to English justice for a lead and it had been found wanting. In the words of Lord Hutton — not a man known to favour hyperbole — “public confidence in the integrity of the administration of justice would be shaken if [Lord Hoffmann’s] decision were allowed to stand”.

Lord Browne-Wilkinson was not in any way to blame for what had happened. However, perhaps the burdens of responsibility were already beginning to weigh heavily on his shoulders. It took their lordships an unexpectedly long time to deliver their opinions. The third Pinochet hearing had began on January 18, 1999. But judgment was not delivered until March 24, nine weeks later. So by the spring the case was no further forward than it should have been four months earlier.

In the middle of April, Jack Straw, the Home Secretary, gave his authority for the case to proceed to its next stage – a hearing at Bow Street Magistrates’ Court. Two weeks later, the case was adjourned until the beginning of June — not unreasonably as Spain wanted to draw up new charges and Pinochet wanted to try his luck in the High Court.

But at that hearing the Chief Magistrate, Graham Parkinson, decided that the full committal proceedings should not begin until sixteen weeks later, at the end of September. Why should that have been? Even more mysteriously, by the time September came around Mr Parkinson — who had always insisted that he should hear the case himself — found he was too busy dealing with administrative matters. What if he had known in June how busy he was going to be in September? Might have chosen another magistrate who could have heard the case sooner? What if there hadn’t been another delay of four months?

In that case, committal proceedings would have been out the way by the spring. There would have been an application for habeas corpus of course, but it’s possible, that the habeas application could still have been resolved by the late summer of 1999. And if that had happened, Pinochet could have been on his way to stand trial in Spain — or flying home to Chile — by the beginning of September that year.

And what difference would that have made? Well, September 1999 was the month in which Pinochet suffered the first in a series of strokes. If the courts hadn’t wasted eight months, it’s possible that the case could have been resolved before he became unwell. Without the strain of waiting, he might not even have become ill at all. And of course it was his illness that, rightly or wrongly, stopped him being extradited.

So if Lord Hoffmann had declared his interest, Pinochet might have found himself sitting in court, fit and well.

And so might Lord Browne-Wilkinson. The senior law lord took take a term off in 1999 on doctor’s orders. The following year, he felt he had to take early retirement. We can only speculate on whether the strain of the Hoffmann affair contributed to his ill-health.

And what if Lord Slynn had forced the issue on the very first day? Perhaps he might have become senior law lord in due course.

As Sir Louis Blom-Cooper QC says in his obituary of Lord Slynn, published in the Guardian last week, “the episode undoubtedly was at least a factor a year later in the appointment of Lord Bingham of Cornhill (then Lord Chief Justice) to become the senior law lord when, in ordinary circumstances, the top judicial post would have gone to Slynn as ‘Buggins’s turn’.

“He was bitterly disappointed. An unidentifiable bout of illness contributed to his retirement in 2002, three years earlier than required.”

What if Lord Bingham had not become senior law lord? Would he have become bored with the role of Lord Chief Justice and retired early, depriving the House of Lords of one of its greatest minds in recent years? Might we not have had a Supreme Court opening in October if Lord Bingham had not pressed for it?

Alternatively, might he have remained Lord Chief Justice and blocked Lord Woolf’s promotion in 2000? Might Lord Bingham have responded less effectively to the constitutional reforms that were suddenly announced in 2003?

Just what would have happened if Lord Hoffmann had not kept silent just after 11.00 am on that November morning? For once, time alone will not tell.

Posted at 07:51 PM | Comments (0)

May 22, 2009

A state of flux

Apologies to my loyal readers for:

1. The delay in linking to this week's article in the Law Society Gazette, which argues that the prosecutor of the International Criminal Court is not only making it harder for Palestine to become a state but is also jeopardising the credibility and impartiality that is crucial to his court’s success.

2. The absence of posts recently. This will be rectified in the next week or so with a new and exciting announcement. Watch this space.

Posted at 04:45 PM | Comments (0)

May 18, 2009

Revealed: more secrets of the jury room

The High Court is expected to decide on Friday what penalty to impose on the publishers of The Times for disclosing how jurors in a manslaughter trial reached their verdict.

Times Newspapers Ltd and Michael Seckerson, the jury foreman, were found to have been in contempt of court. Mr Seckerson had contacted the newspaper to express his doubts over the conviction of Keran Henderson, a childminder found guilty of the manslaughter of Maeve Sheppard, aged 11 months, in 2007.

Section 8 of the Contempt of Court Act 1981 makes it a contempt of court “to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings”.

But that is exactly those dishonourable members down at the House of Commons did on the very day that The Times was found guilty. In evidence published on-line, MPs disclosed opinions expressed by jurors in a libel trial.

The case was brought against News Group Newspapers, publishers of The Sun, by a former EastEnders actor called Mohammed George. George, 26, who played a road sweeper in the television series for more than five years, complained that the newspaper had falsely accused him of beating up his girlfriend in the street and running away. In April, the jury ruled in his favour and awarded him £75,000 damages.

Giving evidence to the Commons Culture, Media and Sport Committee on May 5, Tom Crone, legal manager of News Group Newspapers, said he thought his newspaper had “pretty well satisfied” the burden of proving that its allegations against Mr George had been true.

“But the jury went away and came back the next day and gave him £75,000,” said Mr Crone, “and it cost us £1 million”.

It’s what Mr Crone said next that matters. “Someone — and perhaps I should not be saying this — bumped into a jury member in the pub not long afterwards.” The jury member had explained, in a sentence, why the claimant had been awarded his damages. Mr Crone then told the MPs.

Did this breach the Contempt of Court Act? I believe not: Mr Crone enjoyed absolute privilege in giving evidence to the House of Commons. So, of course, did the committee when it transmitted Mr Crone’s remarks in a live webcast on the internet and transcribed them on its website.

Can I lawfully report what he said? I enjoyed qualified privilege from libel if I publish a fair and accurate report of Parliamentary proceedings. But I don’t think that will get me off a contempt of court charge.

Let me try a compromise. Click here for Mr Crone’s “uncorrected evidence” and scroll down to Question 816. You will find what the juror said towards the end of his answer. It’s interesting, if depressing.

Have I now disclosed opinions expressed in a jury room? I don’t think so. For one thing, I don’t know if the man in the pub was telling the truth. For another, I have not disclosed anything myself. I merely told you where to look.

If the Attorney General thinks I’m wrong on this, I’ll gladly remove the link from this page to the committee’s page. But, in that event, it would be more sensible for Lady Scotland to ask the committee to remove the sentence in question from its website. I can’t see that happening, though.

Back to the Times contempt ruling. It’s worth looking at the full judgment for two amusing vignettes.

First, counsel for Times Newspapers relied on a letter written in 1982 by the then Attorney General, Sir Michael Havers QC, advising the Sunday Times what questions it could lawfully ask a juror. Lord Justice Pill cast doubt on Sir Michael’s advice, saying that the answers to some of the questions posed by the Attorney General could have amounted to contempt of court.

That must have made uncomfortable listening for counsel to the present Attorney General, who brought the proceedings. He is Philip Havers QC, Sir Michael’s son.

The other vignette comes from a statement under caution made to the police by Frances Gibb, legal editor of The Times. She disclosed that she had “failed to arouse the interest of the news desk” in Mr Seckerson’s initial approach to the newspaper. It was only when a second juror spoke to the BBC about the case a couple of weeks later that she decided to take up the story again, two jurors being more newsworthy than one.

Even then, “publication was held up for a few days for lack of space”.

But Ms Gibb got her story published in the end. Her persistence is admirable — but I wonder if she now regrets it.

Posted at 12:22 AM | Comments (0)

May 11, 2009

MP gets the law wrong

MPs cannot get round the Freedom of Information Act by outsourcing their paperwork, the law firm Clifford Chance pointed out today.

It noted that Sir Stuart Bell, the Labour member of the House of Commons Commission, had said that MPs' receipts would not be released for public inspection under FOI when processing was moved to an external body.

“Receipts would be available under FOI in the unit [when it is part of the Commons] but when they go to an outside unit they would not,” the MP said.

But that is incorrect, according to Clifford Chance.

Michael Smyth, the firm's head of public policy, said: "The Act applies not just to information held by a public authority, but also to information held on behalf of that authority.

"The House of Commons cannot simply get around the Act by outsourcing expenses administration to someone else. Otherwise, every public authority in the country could send their records out to a third party and refuse all requests made under the Act.

"Even if future expenses information is held by a private sector company, it would still be held on behalf of the Commons and a request for it would be able to be made to the Commons in the usual way."

Seems pretty obvious to me. Perhaps MPs should have spent some of their expenses on legal advice.

Posted at 01:55 PM | Comments (0)

May 07, 2009

Old World countries must try harder on human rights

Britain should take steps to ban complicity in torture, the most senior elected official at Europe’s largest representative body said in London this week.

But was anybody listening? Fortunately, as I explain in this week's Law Society Gazette, the Council of Europe is not relying on words alone.

Posted at 09:36 AM | Comments (0)

Is 'Dr Death' breaking the law?

An Australian euthanasia activist has been travelling round Britain this week holding what have been described as “suicide workshops”. Is Dr Philip Nitschke breaking the law?

Section 1(2) of the Suicide Act 1961 says that a person who “aids, abets, counsels or procures” suicide — or attempted suicide — commits an offence.

Attempting to aid, abet, counsel or procure suicide or attempted suicide is also an offence under the Criminal Attempts Act 1981.

So the ultimate questions for any court would be whether Dr Nitschke’s conduct comes within these definitions and whether he had whatever degree of intention may be required by the law.

It’s clear enough from media reports that Dr Nitschke provided his audience with information about committing suicide. But is that enough?

In 1981, the Voluntary Euthanasia Society published a booklet called A Guide to Self-deliverance. After advising readers who might be contemplating suicide to think again, the booklet set out five separate methods of suicide in clear, straightforward and reasonably detailed terms.

The Attorney General asked the High Court for a declaration that distribution of the booklet was a breach of the Suicide Act. His application was dismissed. Mr Justice Woolf, as he then was, held in 1983 that the offence would be committed only if the booklet was supplied to a particular individual considering suicide and with the intention of assisting or encouraging him.

The judge said: “If ... before sending a copy of the booklet, a member of the society had written a letter, the contents of which were known to the person sending the booklet, which stated that the booklet was required because the member was intending to commit suicide, then, on those facts, I would conclude that an offence had been committed — or at least an attempted offence — contrary to section 2 of the Act.”

Distributing the book could be an offence in some circumstances, Mr Justice Woolf concluded. “But, before an offence can be established to have been committed, it must at least be proved:

(a) that the alleged offender had the necessary intent: that is, he intended the booklet to be used by someone contemplating suicide and intended that person would be assisted by the booklet’s contents, or otherwise encouraged to attempt to take or to take his own life;

(b) that while he still had that intention he distributed the booklet to such a person who read it; and,

(c) in addition, if an offence under section 2 is to be proved, that such a person was assisted or encouraged by so reading the booklet to attempt to take or to take his own life; otherwise the alleged offender cannot be guilty of more than an attempt.”

Writing about the case in his book The Pursuit of Justice last year, Lord Woolf explained why he had declined to make the declaration requested by the Attorney General. “To do so would amount to a finding that Mr Able [of the Voluntary Euthanasia Society] had committed a criminal offence”, the former Lord Chief Justice said, “and it seemed to me that only a jury should perform that task.”

This seems a good starting-point on which to judge Dr Nitschke’s actions. So long as his workshops and his comments on BBC Radio Five Live this morning amount to no more than providing information, he may well be on the right side of the law. If he is not encouraging suicide, as he insisted, then it would be hard to establish that he had the necessary intention to commit an offence.

That argument seems to have satisfied immigrations officials who allowed him to enter Britain last week.

The law will be worded differently if and when the Coroners and Justice Bill becomes law. That would make it an offence for a person to do something “capable of encouraging or assisting the suicide or assisted suicide of another person”, but only if the defendant’s act was “intended to encourage or assist suicide or an attempt at suicide”.

Explanatory notes issued with the government's Bill say that the clause “does not change the scope of the current law”. It merely amends the language to make it easier to understand.

Posted at 09:13 AM | Comments (0)

May 01, 2009

Hoffmann: the fog begins to lift

I wrote here last week about the extraordinary incident just over 10 years ago in which Lord Hoffmann heard an appeal to the House of Lords while he was, in the words of a fellow law lord, “disqualified from sitting”.

One lawyer accused me of seeking to exploit “the only mishap in this otherwise brilliant career”. But another told me it was an honest and courageous piece to have written.

What I particularly hoped is that it would shed more light on the incident itself. Hoffmann has never apologised, never explained.

The general view seems to be that his fellow law lords knew of his connections with Amnesty International, a party to the Pinochet case in which he was sitting. In particular, these links were known to Lord Slynn, who was chairing the panel of five law lords.

According to this account, the rumoured momentary pause at the start of the hearing that I mentioned in my article was ambiguous. Slynn was waiting for Hoffmann to declare his interest. Hoffmann was waiting for Slynn to invite him to do so.

The moment passed. According to this theory, Hoffmann thought he had been given the green light by Slynn. Slynn thought he had no authority to say anything in view of Hoffmann’s silence.

In my view, this was a mistake by Slynn. But it was a much greater mistake by Hoffmann. He could still have interrupted counsel’s opening speech to declare his interest.

Friends of Hoffmann say it was Slynn’s fault for acquiescing. But Slynn felt very badly about it. His supporters say he felt he had been blamed for the debacle that followed and lost the chance to become senior law lord.

But there was some comfort for Slynn in his last days. He was awarded the GBE in the New Year’s Honours List. When he died last month, it was with the feeling that he had been rehabilitated.

Posted at 08:28 AM | Comments (0)