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 May 27, 2009 07:51 PM