Richardson v Director of Public Prosecutions  UKSC 8 – read judgment / press summary
The tactics of protesters engaging in demonstrations, or acts of civil disobedience, frequently raise interesting questions of law. A demonstration by two activists opposed to the Israeli occupation of the Palestinian Territories, who entered a shop in Covent Garden which sold produce from the Dead Sea, produced on an Israeli settlement, recently resulted in the Supreme Court addressing two such questions.
First, in what circumstances can someone who trespasses on premises and disrupts the activities of the occupiers avoid prosecution by arguing that those activities were in some way unlawful?; and second (obliquely) is the construction of Israeli settlements on the West Bank an offence under English law? The short answers were (1) only when the unlawfulness is integral to the occupier’s activity; and (2) probably not.
The Ministry of Justice has published its response to the consultation on the latest round of Judicial Review reforms. The full response is here and the Criminal Justice and Courts Bill is here.
In my post on the first draft of the MoJ proposals, I warned to beware of kite flyers, and said:
Sometimes, especially with Government consultations, a kite is raised in order to distract from what is really happening on the ground. As with the last phase of JR reform, the rhetoric is more extreme than the reality.
Without wanting to say “I told you so” (oops), don’t be fooled by the seeming concessions. There is still a lot to be concerned about in what remains, as there was in the last round of changes – as Dr Mark Elliott points out, JR, like the NHS (and Communist Russia), now seems to be in a state of perpetual reform. I do not intend here to analyse the proposals in detail, but I will point you towards some excellent early articles.
The glass foyer of the Palais de Droits de l’Homme in Strasbourg (pictured) is not to everyone’s taste. Some find it inspiring, others – often advocates appearing for the first time – are simply too nervous to notice. Typically, Rumpole on his triumphant visit takes a much more down-to-earth approach, comparing the building to the boiler of a ship.
Whatever one makes of it, the foyer of the Court is designed to remind visitors of two things: the Court’s accessibility and its openness. That is not always apparent from the Court’s procedures or from the language it sometimes uses to express itself, but it is beyond question that the Court is open to the different legal traditions of its member States. Most influential among those traditions must surely be the common law.
Marines A & Ors v Guardian News and Media & Other Media  EWCA Crim 2367 – read judgment
On 15 September 2011 a patrol of Royal Marine Commandos were involved in an incident, which resulted in one of them, referred to as “Soldier A”, shooting dead an armed but seriously wounded Taliban fighter. Evidence of the shooting emerged later and five members of the patrol were eventually charged with murder. The charges against two of them were later dropped but the three remaining marines were tried for murder before the Court Martial. On 8 November 2013, Soldier A was found guilty of murder.
Quite apart from this extraordinary facts, the trial was unusual for another reason: publication of the identity of each of the defendants was prohibited at the commencement of the proceedings by an assistant Judge Advocate and later the Judge Advocate General (each of the judge’s in the court martial who considered the issue are referred to throughout as “judge”). The Court Martial Appeal Court (essentially the Court of Appeal Criminal Division sitting under a different name) was later invited to review the orders in respect of reporting restrictions. This was linked to the release of video footage and photographs relied on by the prosecution during the case.
The Parliamentary Joint Committee on the Draft Voting Eligibility (Prisoners) Bill today published its report – you can read it in full here (PDF/HTML/conclusions). I gave evidence to the committee a few weeks ago – you can watch again here.
The report strongly recommends enacting legislation so that “ all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections”. The recommendation could not be more emphatic, with the committee concluding, amongst other things:
The Conservative Party Conference began today. As has been the case in past years, human rights policy will have a prominent role to play, but much of which is said will be bluster. The Prime Minister has already said that all options are on the table, including withdrawal from the European Convention on Human Rights (ECHR). Expect more tomorrow when Lord Chancellor Chris Grayling and Home Secretary Theresa May step up to the podium from 2:30pm to 4pm.
Judging from the Prime Minister’s comments as well as Chris Grayling’s in the Spectator, it appears likely that this party conference will be similar to previous ones. Government ministers will promise that a majority Conservative government will replace “Labour’s” Human Rights Act with a Bill of Rights – a longstanding Tory policy which also featured in the party’s 2010 manifesto (at p.79). The promise was scuppered after the 2010 election due to demands from coalition partners, the Liberal Democrats. And, the Tories will continue to make vague threats that “people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg” (Grayling, a self-described “staunch Eurosceptic”) and that ECHR withdrawal “may be… where we end up” (Cameron).
Wright v Commissioner of Police for the Metropolis  EWHC 2739 (QB) – Read Judgment
Image via Richard Millett’s Blog
The High Court has found that the containment of a protester in a designated protesting pen for seventy five minutes was not unlawful at common law, nor under the Human Rights Act 1998.
On 30th March 2011, a seminar marking sixty years of British-Israeli diplomatic relations took place in Chatham House in St James’ Square, London. The Israeli President, Mr Shimon Peres, was to be in attendance, and a group of protesters from the Palestinian Solidarity Campaign took the opportunity to demonstrate outside the seminar venue.
Yesterday, before His Honour Judge Peter Murphy ruled that a female Muslim defendant in a criminal trial must remove her face-covering veil (niqaab) whilst giving evidence, Home Office Minister Jeremy Brown said he was “instinctively uneasy” about restricting religious freedoms, but that there should be a national debate over banning the burka.
Many of us have a gut reaction to the niqaab, which poses particular problems for our mostly liberal, secular society. Arguably, it also prompts less laudable instincts originating in fear of the ‘other’. But trusting in our instincts is never a good way of solving complex problems. As I have suggested before, when politicians appeal to their gut they are often just avoiding making an intellectually sound case for their position.
The second salvo in the Government’s war against Judicial Review was launched last week. At least, that is what you may think after reading the Lord Chancellor Chris Grayling’s fire-breathing op-ed in the Daily Mail, in which he gets within a whisker of saying Judicial Review was invented by Karl Marx to foment socialist revolution.
“Beware kite flyers“, warned former Court of Appeal judge Sir Stephen Sedley in a recent article. Before Mr Grayling launched his latest kite, Sir Stephen argued that placing a political attack dog in the constitutionally delicate role of Lord Chancellor ”exposed the legal system to the vagaries of politics and policy, with profound implications for the rule of law“. Law was hardly insulated before, but it is difficult to remember a Lord Chancellor putting his case in such a nakedly political and incendiary way.
Yesterday Sir Nicolas Bratza spoke candidly about the responsibility of certain UK politicians and media outlets in tarnishing this countries human rights legacy. He called on lawyers and NGOs to help rekindle the fire for human rights at home.
At an event hosted by the British Institute of Human Rights (BIHR) and the Law Society – “Sixty years of the European Convention on Human Rights (ECHR): What does the future hold?” – politicians, legal practitioners, civil servants, academics and activists debated the impact of six decades of the UK’s membership of the ECHR.
As the August news lull continues, the David Miranda controversy is still troubling commentators – see Daniel Isenberg’s superb roundup. In the past week or so, an interesting symmetry has arisen between those defending and criticising the Police’s actions.
The Police’s critics say the detention was probably unlawful, but even if it was lawful it shouldn’t have been as, if this non-terrorism case can fit within existing anti-terror law, then terrorism powers are too wide. This more or less fits with my view, although I am not sure yet about the lawfulness of the detention. A reverse argument is made by the Police’s defenders: the detention was probably lawful, but if if it wasn’t then it should have been, as we need to be able to prevent these kind of dangerous intelligence leaks from occurring. See e.g. Matthew Parris and to an extent Louise Mensch.
Into the second category steps Lord Ian Blair, former Metropolitan Police Commissioner. He has told the BBC that the threat from international terrorism was “constantly changing” and there was a need to “review the law”:
According to reports in yesterday’s Times (£) and Telegraph, the government is planning a further set of reforms to judicial review. (I have written before about why the original proposals, published in December 2012, were objectionable—and about the fact that the government pressed ahead with many, but not all, of them, excoriating criticism notwithstanding.) Today, it is said that the Ministry of Justice is drastically to restrict the test for standing in judicial review cases. A “government source” told the Times that:
We’re looking at making some changes so that the system isn’t open to abuse by groups who may not have a direct interest in the issue at hand but simply want to cause delay or disruption to plans or generate publicity for themselves.
This fits with the overarching narrative emerging from (certain parts of) government, according to which accountability to law—whether domestic or European—is increasingly characterised as a brake on economic progress, a challenge to democracy by unelected judges, or little more than a public-relations tool that is strategically deployed so as to “play the system”.
I have an opinion piece in today’s Times on Abu Qatada. It is behind a paywall so I can’t reproduce it here, but you can probably guess from the title what my theme is: Abu Qatada’s case shows the human rights system works. Enjoy (if you have access).
Here is a taster:
Tan & Anor v Law & Anor (2013) – Currently available on Lawtel 25/6/2013 and Westlaw, BAILII link to follow
The absence of legal representation for defendants to an action for debt who contended they could not speak English resulted in the High Court granting an application that the trial be adjourned for a second time. The judgment is a good example of the interaction of Article 6 ECHR (right to a fair trial) with the Civil Procedure Rules (CPR).
The decision by Judge Burrell QC obviously turns on its own facts. But the absence of legal aid, the rise in litigants in person, and the increasing number of persons in this country for whom English is not their first language (or indeed their language at all) mean that this is not likely to be the last such case.
Bank Mellat v HM Treasury  UKSC 39 (see judgment)
My post of earlier this week explained why the majority of the Supreme Court struck down a direction telling all financial institutions not to deal with this Iranian Bank. The legal ground (involving, as Lord Sumption described it, “an exacting analysis of the factual evidence in defence of the measure” ) was that the direction was “disproportionate”. The judgments (particularly the dissenting one of Lord Reed) tell us a lot about the scope of proportionality. And there is a good deal more to it than there might at first sight appear.
So it may be worth doing a bit of a bluffers guide, hand in hand with Lord Reed.
The concept arises in human rights law and in EU law. Its ECHR and EU incarnations derive from German administrative law, but its development in English law shows strong common-law influences. It applies in many different contexts, and the intensity of the review required critically depends on that context as well as the right being interfered with. So it is no simple thing to explain, but Lord Reed at  –  distils the main elements.