The lessons of shaggy dogs and Catgate

5 October 2011 by Adam Wagner

Updated x 2 | What can we learn from yesterday’s gaff by the Home Secretary Theresa May involving Maya the cat?

First, when referring to a legal judgment in a speech make sure you get the outcome right. Particularly when prefaced by “I am not making this up”. Secondly, if said speech is being broadcast live, there are plenty of lawyers on Twitter who will enjoy nothing more than tracking down the judgment, reading it and exposing the fact that you have got it wrong.

These lessons are important. But they relate to any amusing but forgettable political gaff. There is, however, a third lesson. There has been for a number of years a trend of wilfully or recklessly misreporting human rights cases. This trend is not just mischievous; it threatens to do real damage to our legal system.

At a seminar last night on human rights in Europe, the pre-eminent human rights lawyer Lord Pannick said that Theresa May’s cat case “turned out to be a shaggy dog story“. I have been blogging about human rights for 18 months and I have spotted a number of similar shaggy dog stories. They have common themes and include a tabloid friendly nugget of truth; prisoners being given KFC meals whilst rioting; prisoners being driven 200 yards despite wanting to walk; a man avoiding deportation because he has a cat.

But another common theme is that the shaggy dog stories get the law wrong. And once released into the wild, these mini-libels have taken on lives of their own.

Maya the cat is a good example. The original judgment was in 2008. For some reason it was then misreported by the press in 2009. Despite being scotched by the judiciary’s press office, the story was repeated a few weeks ago in the Sunday Telegraph as another example of human rights gone wrong, albeit with the qualifier that the deportation was avoided “partly” because of the cat (which is still wrong). It was then picked up by the Home Secretary for her party conference speech. The rest is history.

Why do the shaggy dogs keep rearing their heads? Lord Neuberger got it right when he identified two different tendencies at work:

The first is simply outright misreporting. The story said one thing, when the truth was the opposite. The second is a more subtle form of misreporting: the Human Rights Act is brought in to take the blame for a decision to which in might have played a part – and the part the critics suggested it did play, but which in truth it did not.

The Home Secretary got it wrong yesterday. Put it this way. If I had a client who was facing deportation and I wanted to show that the simple fact that he had a cat meant that he should stay, and I tried to use the Bolivian cat judgment as a precedent, I would be laughed out of court.

Often judgments really do mean one thing – law students will know this is called the ratio decidendi – and no amount of clever arguments can make them mean something else (believe me, I’ve tried).

When lawyers and judges complain about misreporting it can sometimes sound like they are focussing on legal pedantry at the expense of principle. Some would say, as indeed Theresa May did following the speech, that cases are open to many interpretations.

But it goes further than that. For a number of years, newspapers and senior politicians have simply got the law wrong. For example, I have repeatedly pointed out on this blog out that Learco Chindamo, Philip Lawrence’s killer, was not deported because of human rights. Lord Neuberger publicly agreed.

So why is that example still wheeled out as an example of human rights preventing the deportation of foreign criminals? Legal writer Joshua Rozenberg has told Legal Week that many national newspapers no longer have a designated legal correspondent, meaning that they “don’t provide the service they did“. But a journalist does not need to be legally trained to check their facts.

It is no surprise that the Justice Secretary and former barrister Ken Clarke immediately smelled a rat. He is not a lefty criminal-loving human rights lover as he is sometimes painted; he is a lawyer who knows that the perception of human rights law in the wider population does not match the reality in the courts. The crucial thing which Clarke also knows is that before deciding on a policy which will affect the whole country, it is a politician’s duty to get the basic facts right.

The issue which the Home Secretary was trying to highlight was human rights getting in the way of deportation decisions. This is a genuine and difficult issue. Blogger Anna Raccoon suggests that May could have picked any number of better examples, such as

the case of a Mr Siraj Yassin Abdullah Ali… sentenced to nine years for helping the 21/7 bombers who killed more than fifty innocent people and maimed and seriously injured many more, but he can’t be deported because he might face “inhuman treatment” in his native Eritrea

But the reforms the Home Secretary is proposing are not about Article 3, the protection from inhuman and degrading treatment, but Article 8, the right to private and family life. The Home Secretary should not just be asking why her speechwriter used a poor example, but the more important question of whether the evidence she is using to set the policy agenda is reliable.

The worrying alternative is that policy is being decided on the basis of tabloid scare stories, feral think tanks and misplaced public anger. In reality, as Francis Fitzgibbon QC has blogged, many decisions about family life relate to difficult issues surrounding the children of potential deportees, not made-up families or cats.

Another inference which could be drawn from the preponderance of shaggy cats and dogs in human rights reporting is that, simply, there are not enough memorable examples of judges making farcical decisions to support the view that they must be reigned in.

Last week the Prime Minister referred to the “chilling culture” of the Human Rights Act, citing an example of a prison van being driven nearly 100 miles to be used to transport a prisoner 200 yards “when he was perfectly happy to walk“. As Liberty has pointed out, this example is pretty unconvincing. Moreover, since when has public or private authority’s misinterpretation of the law been a justification for changing it?

Those are the worrying lessons of Maya the cat. In a recent speech the Prime Minister bemoaned the “twisting and misrepresenting of human rights”. He was referring to the August riots and used his speech to blame human rights culture for the moral degradation of our country. But the twisting and misrepresentation is actually occurring closer to the Prime Minister’s door.

At present there is little danger that human rights will be removed altogether from UK law. But after the next election, anything could happen. It is time to put aside the cats and shaggy dogs and concentrate on the real evidence.

Update, 6 October 2011 – Justice Secretary Ken Clarke has come out in strong terms against the Home Secretary’s use of the cat example. Speaking to the Nottingham Post (as reported by guardian.co.uk), he said:

I sat and listened to Theresa’s speech, and I’ll have to be very polite to Theresa when I meet her – but in my opinion she should really address her researchers and advisers very severely for assuring her that a complete nonsense example in her speech was true.

I’m not going to stand there and say in my private opinion this is a terrible thing and we ought to get rid of the Human Rights Act.

It’s not only the judges that all get furious when the home secretary makes a parody of a court judgement – our commission who are helping us form our view on this are not going to be entertained by laughable, child-like examples being given.

We have a policy and, in my old-fashioned way, when you serve in a government you express a collective policy of the government – you don’t go round telling everyone your personal opinion is different.

Update no. 2: This is a fast-moving story. Ken Clarke has now expressed “regret” about the “colourful language” he used.The Independent reports he has made a statement saying:

I do rather regret the colourful language I used at one point in my interview. This is old news from an interview I gave during the Conservative Party Conference. I consider this issue closed. The Prime Minister has made the position clear, and I fully support it. There is a problem with deporting foreign prisoners, which I have always agreed with Theresa needs to be addressed. The Government’s Commission on a Bill of Rights is under way. I do rather regret the colourful language I used at one point in my interview.

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