Interviews are your gateway to pupillage. While some chambers will have just one round of interviews after the paper application stage, most will have two.
If you get an interview, take heart! It is an indication by that chambers that you have the basic educational and experience requirements to become a tenant there. Chambers do not invite people to interview just to ‘make up the numbers’. Interviewing you takes time and effort and they would not do that unless they genuinely see you as a potential pupil.
Preparation is paramount because pupillage interviews are tough. Not only is the competition at this stage likely to be fierce but you will also be facing a panel of highly intelligent individuals, trained in the art of cross-examination. They will thus be masters in the art of using questions to put people under pressure and to wheedle out weaknesses or inconsistencies in a story.
To give yourself the best possible shot, you should prepare for your interviews as you might for an exam by creating files for each element of your application and by learning, revising and practicing.
There will be four main elements of your preparation.
'Revising' your application
You must be willing to talk about ANYTHING that you have written on your application form so it is important that you go through the entire form word by word, line by line, and make sure you are comfortable talking about any part of it.
If you have followed the TPP advice on your Application Form and deliberately mentioned issues/cases/areas of law you would like to discuss then now is the time to make sure you know those topics inside and out. If you mention a recent case you found interesting, for example, you will need to know the judgment thoroughly, including, hopefully, some critical reflection of you own.
Once you feel confident you can talk about everything on your form, go through your entire form again and pick out around 4 or 5 ‘golden points’ that you would love to get in to your interview. These ‘golden points’ might be a particularly intriguing point of law you came across in a moot or on a mini or it might be an element of your work at an internship that the panel will find particularly impressive. When it comes to the interview, you should then have these golden points waiting in the wings to come out and wow the committee with should the opportunity arise. You only have a very short time to impress them and you will kick yourself if you leave the interview without having talked about what makes you great.
Then go through your application for a third time and try to think up every conceivable question you could be asked given what you have written. Make a list of these and then focus on each trying to sketch out a rough answer. This will be a good way of making sure you know the areas you have highlighted on your form to a sufficient degree.
A word of caution: while it is good to highlight points or areas that you want to talk about - and for some interview questions (such as What law would you change? or Talk about a recent case you found interesting) it is good to have an idea of what your answer will be - it is never a good thing to fully prepare answers word for word. It will be obvious if you have done this and will not impress the committee.
Finally you will want to identify any potential weaknesses in your application and be prepared to talk about them in your interview. These may be blips in your academic record, unusual career changes or significant gaps in employment. Don’t obsess about them or draw attention to them needlessly. Just anticipate what the negative connotations of the blip might be from the panel’s perspective and come up with a concise and reasonable explanation in mitigation to have in reserve should the issue arise.
Researching the chambers
You should try to find out as much as you can about the chambers that is interviewing you. You will likely have covered some of this ground already if you answered a Why this chambers type question on your application form, but to recap, the main things you will need to know are:
- What areas of practice the chambers covers and, crucially, which areas make up the bulk of the practice.
- The chambers ‘ethos’ or approach to its work.
- The prominent cases which members of chambers have been involved in.
- How pupillage is organised.
- What chambers’ plans for the future are
Start by reading our chambers profile through the Pupillage Directory and then go on to read the entirety of the chambers’ website. The Legal directories (Legal 500 and Chambers & Partners) will allow you to see the areas of practice for which your chambers is particularly known and this can be confirmed by inquiring with barristers from other sets. Follow up on some of the prominent cases that members of chambers have been involved in and keep an eye on the set’s name in legal magazines such as The Lawyer for a richer understanding of chambers’ work.Keeping an eye on the current issues
It is important to keep up on the latest legal news but there is no need to take this to extremes. Chambers will not be trying to catch you out or test your general knowledge and so the legal section of The Times or The Guardian will likely be a sufficient source. This goes for current affairs more generally – keeping an eye on BBC news and watching the occasional Newsnight will be plenty in terms of preparation. If you were to be asked a current affairs question in your interview it would only be on an issue that had been very prominent in the news. Your knowledge of the issue is not what they will be testing and so as long as you know the basics of what your interviewers are referring to, you will be fine.
One way to keep on top of the news stories is to keep a running list of major issues that occur in the six months prior to your interview and then when it comes to a your interview preparation, google each of the stories and jot down a few notes under each heading.
Top Tip: If you have access to LexisNexis you can search the legal sections of the Times and other newspapers over the past year in one go. You can also use the search functions to look up articles on particular news stories.
The final part of your preparation is practice. Just as you would for an exam, running through what you will be expected to do on the day is the best way to practice. Get yourself as many mock interviews with barristers as you can. The Inns all run some form of mock interview scheme and the benefit of these cannot be overstated.
You can also practice on your own. Take a copy of our list of Sample Questions (as well as the questions you have generated yourself from your application form) go somewhere quiet and practice running through some answers.
Points to remember on the day
Dress: Be conservative and extremely smart. This is all part of the question of whether you are sellable on the market i.e. whether solicitors will have confidence in you despite your relative inexperience. Shoes polished, hair well groomed, shirt/blouse immaculate, suit dry-cleaned. You should make sure your appearance is flawless.
Arrive very early: An obvious but vital point. Until you arrive at your chambers, your interview and thus your pupillage chances are at the mercy of travel and other delays. Get there with plenty of time to spare and use the time before the interview to fully compose yourself.
Top Tip: Its important that you are in the right frame of mind when you walk into your interview. If there is a piece of music that helps you get into the state then bring it along on your ipod and give it a listen 10 minutes before you go in. The same could go for a particular passage of writing or a photo.
Making notes: If you have occasion to make notes in preparation for an interview that you intend to take into the room with you, be aware that the interview will likely be on a flat table meaning that the panel will be able to see your notes. Although they won’t likely be able to read them, they will be able to see how you have set out your ideas. If your page is all over the place and covered in doodles it won’t give the best impression.
Responding to interview questions
Interviewing panels are as much interested in how you answer questions as with what you choose to say. With that in mind…
Be logical: Your answers should be ordered and logical. Overtly structuring your responses is a good way of showing that you have an ordered mind (e.g. “I think there are three important issues here. Firstly,…”).
Discipline your speech: In the weeks leading up to your interviews practicing speaking without using any “ums”, “ers” or other verbal ticks. It does take practice but will greatly improve how you come across. The best way to appreciate your verbal ticks is to record yourself answering questions and then listen to them back.
Remember to stop: Often the panel will not interrupt you when you are giving your answer and so it is very important that you know when to finish speaking. Once you have reached the end of what you want to say, stop talking and do not be panicked by the silence into carrying on.
Difficult interviewers: Sometimes one or more of the panel members (occasionally all of them) will take a hard line in order to see how you perform under pressure. In order to minimize the risk of being caught out by such an approach, go into each interview as if it is a court room. That is not to say be uptight but just be ready to respond to a difficult or stern response if need be. In court you may get a sympathetic, friendly judge who does everything to accommodate the exposition of your case. You may, however, get a tired cranky old judge that does everything to make your life difficult. The same will go for interviewers and you should go into the room prepared to face both.
Pauses: Get used to pausing after a question is asked and before you give your answer. Providing you then provide a well-structured and thoughtful response, a brief pause gives the impression of a confident candidate who is keen to provide concise and structured answers rather than blurting out the first answer that comes to mind. This just takes practice. When you first try it, it is natural to be thinking “Damn – I’ve just been sitting here for 10 seconds, now I’ll come out with something even more stupid”. In practice, such pauses commonly follow judicial questions, however, and barristers are well used to it.
The elements of the Interview
Interviews obviously vary considerably between chambers. However, the vast majority of interviews will be made up of some combination of the following elements.
Here the panel will flick through your application form and pick out a few items that they would like to ask you about or invite you to elaborate on.
- How is your undergraduate degree relevant to a career at the Bar?
- You say that you have already completed a FRU case. Could you tell us about that?
It is in answering these questions that your thorough preparation becomes important. For each item on your form you should not only know enough about it to answer whatever question the panel will throw at you but ideally you should also have one or two ‘golden points’ – observations or interesting facets of the particular piece of experience that are especially impressive - to drop in if an opportunity arises to do so.
This is the part of the interview that you have the most control over and, if you have done your preparation correctly, should hold few surprises.
The primary reason for asking these questions is to see whether:
- Why do you want to be a barrister? Why not a solicitor?
- Where do you see yourself in 5 years time?
- What do you see as the most important qualities in a successful barrister?
a) You understand what the profession entails; the qualities required and its challenges; and
b) You are committed to sticking it out and are not using the bar or pupillage as a stepping-stone to what you would ultimately really like to do. In other words they want to ensure that you are not going to up and run off into investment banking if they give you one of their precious pupillages.
Thus, while the panel will appreciate an honest answer, a safe approach might be to accurately outline what a barrister does and show what attracts you to those elements of the job.
Finally bear in mind that if your CV points towards an alternative career or a particular type of law in which the set does not practice, be ready to answer a question on why you are not going to pursue that area.
Questions about your motivation for joining a particular chambers are actually quite rare. There is a section covering this question on the OLPAS form and most non-OLPAS sets will also have a similar section meaning that you are unlikely to be asked about it directly in the interview itself. Even if the questions aren’t asked directly, however, an understanding of the chambers you are applying for – the work they do and the atmosphere/ethos – should permeate all of your answers to some extent. Finding out the information you need in this regard means reading every page of the chambers website, their listing in the Legal 500 or Chambers and Partners and asking around barristers and pupils to get the inside story.
- Why do you want to come to these chambers?
- What do you think you will get out of pupillage here?
Top tip: when reading the website is to try to pick up on how the chambers views itself. What image it wants to project. Matching that image with the image you portray of yourself at interview would be a sensible approach to take.
Practice Area motivation
An answer to this type of question might include the following two elements: 1) Why you find the area of law intellectually interesting and 2) why you are attracted to the particular characteristics of practice in that area (i.e. the style of advocacy required, degree of client contact, intellectual demands etc).
- Why do you want to practice in public law?
This is really an extension of the ‘Career motivation’ questions above: chambers want to see that you have a passion for the area of law they practice in and also that you understand the realities of maintaining that kind of practice. Remember, that the people sitting opposite you will have chosen to spend their lives in a particular area of law so demonstrating (note: not simply ‘saying’) that you are passionate about it too will be an important means by which you endear yourself to the panel.
Some chambers may test your legal mind by setting a legal problem to discuss during your interview. Some will send you your legal problem to prepare a day or two in advance but often you will only get it on the day and be given anything from 15 minutes to an hour to prepare.
The problem may be a scenario similar to those found on law courses or it might be a simple brief. For commercial chambers, you may get a contract with a scenario and some questions. For criminal chambers you may be asked to give a plea in mitigation or a bail application.
In the majority of cases, the panel will not be testing your legal knowledge. This is necessary in order to create a level playing field between law and non-law grads. As such, it would most often be inappropriate, for example, to cite actual cases. Having a good grounding in the basic principles of the area of law in which your target chambers practices would be sound preparation. Knowing the elements of a negligence claim for mixed civil sets, the elements of contract formation and termination for commercial sets or the grounds for judicial review for public law sets, for example, would be prudent. Some of the very top commercial sets will expect you to know contract law in a bit more depth but generally what is being tested is how you think rather than what you know.
It is worth remembering that you may well be applying to practice in an area of law that you haven’t ever studied. Coming off the GDL, you won’t ever have studied family or employment law for example. In these cases, it is vital that you do some reading of your own and get to grips with the basics of this area of law. You won’t be given too much leeway for not having been formally taught a particular subject area if you express a strong interest in that area on your form.
Given that the panel is interested in how you think, it is important to ‘show your working’. A sound approach when tackling legal problems might be to explain briefly your understanding of the law, then explain how you are applying that knowledge to the facts of the scenario and finally offer practical advice that the ‘client’ in the scenario would find useful.
Be aware that some problems will be deliberately far too hard or long to be able to complete sufficiently in the time. Here they are testing your ability to think clearly and logically even where you have limited knowledge. To do this, simply follow the same structure as above: knowledge, application, practical advice. Don’t throw an interview away by assuming you are not going to make it just because it is hard. Often they expect EVERY candidate to find it very hard and are looking to see who copes best under pressure.
The Code will give you the framework for approaching ethical questions. Arguably the most important framework to be aware of is that as a barrister your first duty is to the court, then to the client and that your own interest comes last. Also, don’t forget that they are not testing your knowledge of the Code of Conduct exactly. They just want to see what your approach to ethical dilemmas would be.
- You have been preparing for a trial for six months and on the day of the hearing a judgement is handed down in another case which significantly undermines your client’s case. Neither the other side or the judge appears to have read the judgement in question. What do you do?
At many chambers, the Chambers Director – the individual, not normally a barrister, who deals with the marketing and business health of chambers – or a senior clerk will be present. Their role on the panel is often to judge how ‘sellable’ you are on the market: in other words, how likely you are to attract work from solicitors and otherwise contribute to the commercial well-being of chambers.
- How would you approach the challenge of attracting and retaining clients for your practice?
This element of your assessment is often overlooked. Barristers chambers are commercial enterprises like any other and, as such, will partly be interested in how much work you are likely to bring in and how well you understand the need to promote and maintain the chambers ‘brand’ to solicitors.
Direct questions on this area are less frequent than the other elements above, but even if there is no direct question, it is an important idea to bear in mind when choosing how to answer other questions.
Current legal topics
Reading lots of cases is always good but it is better to read a few key cases really well than lots at a superficial level. It would be extremely unlikely that an interview panel will ask you anything in depth on a particular case without specifically asking you to prepare it before hand. Much more likely they will invite you to pick a case of your own to talk about (a recent judgment you disagreed with, or one you found particularly interesting). Given this, detailed knowledge and, most importantly, personal reflection on a judgment will stand you in far better stead than just a superficial name-drop.
- Could you tell us about a recent judgment that you found interesting/disagreed with?
- What law would you change and why?
- What do you see are the main challenges facing the Criminal bar?
These questions may either be given to you during preparation time before the interview begins, or just thrown in during the course of the interview.
- Should the law be changed to allow for Physician-Assisted Suicide?
- Should bankers bonuses be capped?
- Should prisoners be allowed to vote?
- Should the possession of low-level drugs be legalised?
As mentioned above, a current affairs or debate question is NOT a test of your knowledge. Like many other interview questions, it is primarily a test of your ability to come up with a reasoned and structured response to a topic and to subsequently respond to challenge from the panel. As such, there is little value in obsessively reading and researching every news story on the off chance that it is asked about in interview. A pupillage panel will generally only ask you questions on a non-legal current affairs issue that has been very prominent in the news in the few months preceding the interview. They do not expect your breadth of current affairs knowledge to extend much beyond what a reasonably well-informed person might know.
In answering such questions you should again try to ‘show your working’ by identifying relevant principles and applying them to the question. For example, an answer to the question of whether the Bloody Sunday Inquiry was worth the considerable cost to the taxpayer might start by considering briefly the role of inquiries, the theoretical and practical purpose they serve and using this as a framework for discussing how far the Bloody Sunday Inquiry conformed to this purpose.
For current affairs issues, if you really do not know what they are referring to, just be honest and say so: they might give you a brief synopsis of the issue before seeking your response. If you then come back with a well-reasoned answer based on your limited knowledge, you will still come across very well.
It goes without saying that practicing debating will dramatically improve your ability to successfully answer these types of questions. All four Inns have debating committees that hold regular training sessions for people of all levels of experience. The debates chosen for most training sessions come from current affairs and so regularly attending these sessions will not only keep you up to speed on topics but also get you into the habit of rapidly forming a defensible opinion.
Top Tip: A common trick once you have gone through your arguments on a particular topic is for panels to ask you to flip your allegiance and argue for the other side of a debate. If you are given prep time, it is worth jotting down a few arguments on the other side of a debate in order to be ready should they take that approach.
Off the wall /personality question
With these questions, a panel is mainly just trying to see if they will get on with you. This is not the time to continue talking about law and it is important to understand that a change of tone is required.
- Convince us of something
- What is your favourite book/movie?
- How would your friends describe you?
- Tell me what you like to do at weekends?
Barristers work extremely hard under considerable pressure. In choosing colleagues they are keen to find people who are able to ‘lighten up’ when back in chambers after a long day in court. This means when asked a hobbies type question, show a bit of personality, smile and relax. The legal aptitude part of the interview is over. Now they want to see that you are human. Be yourself, be honest, be engaging and, if you are up to it, be entertaining.
“Any questions for us?”
This question will almost always come up at the end of your interview. If you don’t have a question then fine, particularly if you have done a mini-pupillage at the chambers during which you were able to gather information. A tired panel will not thank you for dragging out the interview by asking an obviously prepared and contrived question.
Top Tip: If your background is in any way unusual, the question at the end MAY be an opportunity for you to briefly bring any other relevant information to their attention. Ultimately, the aim of the interview is to allow the panel to get as much information about you and your abilities as possible and many panels will welcome the fact that you want to bring something relevant to their attention. A word of warning however: this is a very subtle art. It will not endear you to the panel if they feel like you are trying to ‘cheat the system’ by sneaking in extra information that other candidates will not have had the chance to put across. Its about using your judgement. If you feel, for example, that the interview has been more freeform, ‘chatty’, with your background forming the basis for the questions then such a comment may be appropriate. If the interview has been more formalised, with the panel asking the same questions to each candidate then it may be best avoided.
All the questions found on this page are actual questions that may be asked during interviews or are likely to be asked. We compiled this non-exhaustive list of questions so you can practice some general answers.
General Career Questions
- Why do you want to be a barrister?
- When did you know you wanted to be a barrister?
- What experiences have influenced your career choice?
- What traits are needed to be a good barrister?
- Where do you see yourself in 10 years?
- Why not a career in...
Bar Related Questions
- Why did you apply to this chambers?
- What areas of law are you wanting to specialise in?
- What relevant experience do you have?
- What do you hope to gain from pupillage?
- Why this area of law?
- Tell us more about this advocacy experience you have?
- How do you see the future of the Bar?
- How do you see the future of the Criminal Bar?
Law Related Questions
- If you could reform any legislation, what would it be and why?
- How would you show a client you are commercially aware of their business needs?
- Give an example of a recent legislative or judicial decision you disagreed with and why?
- You are instructed to represent someone who has views which you disagree with, what do you do?
- So tell us more about this case you referred to...
- Give an example of you successfully working independently?
- Give an example of you working successfully as a team?
- How would you deal with a client who is extremely emotional?
- How would you deal with a client who refuses to follow your advice?
- What motivates you?
- Give an example where you disagreed with the rest of a team and how did you react?
- What are your main strengths?
- What are your main weaknesses?
- What goals have you previously set out and how did you meet those goals?
- Give an example where you have worked under pressure?
- How do you react to failure?
- How do you respond to change?
- Why should we invite you back?
- Give an example where you had to negotiate to achieve a desired outcome?
- What examples can you give which shows you engaged in persuasive argument?
- Outside academics, which achievements are you most proud of and why?
- Were you a member of any university societies?
- Did you hold a position in any university society?
- What are your interests outside law?
Think Fast Questions
- Which three people (living or dead) would you most like to invite to a dinner party?
- If money were no object, how would you like to spend the evening?
- Which historical figure do you most identify with?
- On what does most of your disposable income go?
- What is your favourite book?
- How would your friends describe you?
- Convince us of something?
- What do you like doing at weekends?
- Who are your role models and why?
Criminal Law News
Editor: Katherine Lloyd
If you have any suggestions, please email me at: firstname.lastname@example.org
The Pupillage Pages will be posting regular, weekly updates regarding the latest stories of interest in criminal law. We will be covering cases, articles, news stories and more. Keep checking the page regularly and you can follow us on twitter @TPPcrime.
Legal Aid Reform
There is no doubt if you are considering practice at the Criminal Bar, you will be tired of hearing the words ‘Legal Aid Reform’. Nevertheless, Legal Aid is an important issue which will affect the future of Bar aspirants, and so, one of which we must all be aware.
The Government Consultation on Legal Aid Reform was open from November 2010 to February 2011. The Government proposals can be viewed at http://bit.ly/fLkrD0 (Chapter 6 concerns Criminal Fees), and the Consultation Questionnaire at http://bit.ly/hZ5sqJ. It is recommended that you read Max Hill, Chairman of the Criminal Bar Association’s, speech on the impact of possible reforms http://bit.ly/gQVR3k.
On the 23rd November 2010, the ECtHR delivered judgment in the case of Greens and M.T. v. the United Kingdom. It stated that the UK was in violation of European human rights law, having failed to implement legislation allowing prisoners to vote following the 2005 decision of the Grand Chamber in Hirst v. the United Kingdom (No2).
On Tuesday 12th April 2011, the UK Government lost its final appeal against the ruling in Greens. Furthermore, the ECtHR laid out a timetable that gives the UK 6 months to produce legislative proposals to allow prisoners voting.
For ending the ban
The argument stated by the European Court is that, "Removal of the vote... runs counter to the rehabilitation of the offender as a law-abiding member of the community and undermines the authority of the law as derived from a legislature which the community as a whole votes into power."
It may also be useful to look at the Prison Reform Trust’s website. This pressure group are supported by Lord Woolf and are currently running a campaign to end the prisoner voting ban.
Against ending the ban
In the original hearing, the government said the restriction on the right to vote was aimed at preventing crime, punishing offenders and enhancing civil responsibility and respect for the law. Lord Firkin stated, "It has been the view of successive governments, including this government, that persons who have committed crimes serious enough to warrant a custodial sentence should forfeit the right to have a say in how the country is governed while they are detained."
Of the 47 member countries of the European Council, the only others who have an outright ban are Russia, Armenia, Bulgaria, Czech Republic, Estonia, Hungary, Luxembourg and Romania. Some have no ban for prisoners (Denmark, Sweden and Switzerland), whereas others depend on the crime committed, or the length of sentence imposed (Italy, Malta, Poland, Greece, Germany and Austria).
With the October deadline fast approaching, the UK government have two options. The first is to introduce legislation allowing prisoners the right to vote. However, this seems unlikely after the House of Commons backed a motion by 234 to 22, opposing a move that would have given prisoners serving terms of less than 4 years the right to vote in Westminster and European elections.
The second, and rather more drastic option would be to withdraw from the ECHR completely. This option is currently under review after David Cameron asked government legal advisors to consider the possibility of leaving and instead introducing a British Bill of Rights.
Sole or Decisive?
Article 6(3)(b) of the European Convention of Human Rights states that the right to a fair trial includes the right of the individual “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. This creates potential problems for the prosecution where they seek to admit evidence under the hearsay provisions (Chapter 3 of the Criminal Justice Act 2003).
Al-Khawaja and Tahery – Fourth Section
Mr Al-Khawaja was convicted on two counts of indecent assault on women who were under hypnosis. One of the women had given a statement to police but died before trial, her evidence was admitted under the hearsay provisions. Mr Tahery was on trial for wounding with intent to cause GBH. One witness had given a statement to the police stating that he had seen Mr Tahery stab the victim. The witness was too scared to attend trial. and his statement was admitted under the hearsay provisions.
On the 20th January 2009 the Chamber delivered its judgment, which can be read here. The Court held that where hearsay evidence was the sole evidence, or had a decisive role in securing the conviction the admission of such evidence would be a violation of Art 6 (3)(d).
R v. Horncastle
The facts of Horncastle were very similar to those in Al-Khawaja. Mr Horncastle had been convicted following hearsay evidence from a victim who had given a statement but died before trial. The second appellant, Mr Blackmore had been convicted on hearsay evidence from a witness who was too scared to give live evidence at trial.
The case was heard by a special five member Court of Appeal bench and judgment delivered on 22nd May 2009. The judgment can be read here. The Justices, going against the decision in Al-Khawaja and Tahery, held that an individuals’ right to a fair trial would not be violated where his conviction was based solely or to a decisive extent on the evidence of an absent witness as long as the provisions in the Criminal Justice Act 2003 had been observed.
The Court gave leave to appeal to the House of Lords and the appeal was heard by a seven member bench in July 2009. The judgment was not delivered until December 2009, by which time the court taken on its new status as the UK Supreme Court. The decision was again unanimous, and fully supportive of the Court of Appeal judgment. The judgment of the supreme court can be read in full here, a useful summary of the conclusions of the Court can be found at paragraph 14 of Lord Phillips’ judgment.
Al-Khawaja and Tahery in the Grand Chamber
Following the judgment of the Supreme Court in Horncastle, Al-Khawaja and Tahery was referred to the Grand Chamber of the ECtHR. The Case was heard on the 19th May 2010 A webcast of the hearing in the Grand Chamber can be viewed here.
Nearly a year later, judgment has yet to be delivered, and the criminal bar is waiting with baited breath. It remains to be seen whether the Grand Chamber will uphold the decision of the lower section or concede to the UK courts findings. If the former occurs then it is clear that changes will have to be made, and this will only add to the argument for our own British Bill of Rights.
Miscarriages of Justice
The phrase ‘miscarriage of justice’ attracted huge media attention in the 1980’s with the notorious cases of the Guildford Four and Birmingham Six. Since that time, substantial steps have been taken within the criminal justice system in order to prevent the reoccurrence of cases such as these. The changes include new legislation regarding procedures (PACE 1984 and the CPIA 1996), and the introduction of the Criminal Cases Review Commission in 1997 to specifically investigate cases in which miscarriages of justice are alleged. However, despite the changes, errors continue to occur.
S133 Criminal Justice Act 1988
S133 of the Criminal Justice Act 1988 makes provision for compensation to the wrongly convicted of up to £500,000. S133(1) states that, “when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction.”
Last week, the Supreme Court delivered their decision in the case of R (on the application of Adams) v. Secretary of State for Justice. The judgment is important as it provides clarity as to which miscarriages of justice come within the definition of s133. A useful summary of the decision can be found here.
The test for a ‘miscarriage of justice’ within the meaning of s133 was given by Lord Phillips at paragraph 55 of the judgment:
“A new or newly discovered fact will show conclusively that a miscarriage of justice had occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it’”
Furthermore, the majority gave a wide meaning to the term ‘new or newly discovered fact’ to include facts that were within the knowledge of the defence at the time of trial, but the significance of which was not appreciated by the defendant or his lawyers at that time.
Whilst the judgment in Adams widens the previous definition of ‘miscarriage of justice’, the Ministry of Justice stated last week that,”we expect that compensation will still only be paid in very few cases”.
It will be interesting to see the effect of this judgment and the first opportunity to do so is likely to be the judicial review of the decision not to award Barry George compensation for the wrongful conviction for the murder of Jill Dando, which was in fact postponed until after the case of Adams.
If you are particularly interested in this topic then further information can be found on campaign group websites such as Innocent and Miscarriages of Justice UK.
R v Twist: Hearsay
The case of Twist and Others was heard by the Court of Appeal on the 12th April 2011, and judgment given on 11th May 2011. It is highly recommended that you read the full judgment which can be found here.
The case concerned four separate appeals; Twist, Boothman, Tomlinson & Kelly and Lowe. All involved communications sent or received by the defendants by text message, the question being whether these were hearsay as defined in the provisions contained in the Criminal Justice Act 2003.
Twist and Boothman were charged with intent to supply drugs, their appeals concerned texts received by the defendants requesting drugs. Tomlinson & Kelly were jointly indicted for possession of a firearm, their appeal involved a text received requesting a gun to be delivered to the text sender. Lowe was charged with the rape of his girlfriend, his case different in that the texts were sent by him to her after the incident
The Court firstly clarifies s114(1), that the statement must be evidence of matters stated. The Court explains that a statement will not be hearsay if the purpose of the Crown is to prove that a relationship existed between the parties, or that the parties were in communication. The hearsay provisions will only apply if what the Crown is seeking to prove is that something stated in the communication is a fact.
The Court goes on to clarify s115(3), the requirement that the purpose of statement maker was to cause another to believe or act on the matter stated. There are useful examples set out paragraphs 13 and 14 of the judgment.
Perhaps the most useful part of the judgment can be found at paragraph 17, where the Court set out a clear three stage test to be followed when working out whether the hearsay rules apply:
i) identify what relevant fact (matter) it is sought to prove;
ii) ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters may be contained in the communication);
iii) If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true ? If yes, it is hearsay. If no, it is not.
This judgment is important as although it does not go further than the words of the statute, it is the Court’s first clear interpretation of the 2003 hearsay rules.
The Future of the Criminal Bar
N.B. – this post is different to previous posts in that I have expressed my own views, I do not hold out that these are the correct ones. With pupillage interviews coming up, this post is intended to facilitate a discussion on The Pupillage Pages Forum, the thread is titled, ‘Future of the Criminal Bar’. Please come and join the debate.
“So things are not looking particularly good, are they?” These were the words of Max Hill QC, Chairman of the Criminal Bar Association, in a recent speech responding to the Green Paper entitled ‘Legal Aid: Funding Reform’. In one question, Mr Hill managed to sum up the general attitude towards the future of the Criminal Bar.
At this time, the Criminal Bar, certainly the publicly funded side, faces much uncertainty and the outlook seems to be one of doom. This article seeks to highlight why this feeling exists and look at the changes that may occur in order to ensure the survival of the Criminal Bar.
What is most clear is that money is at the centre of the problems facing the Criminal Bar. The current economic problems have led the Government to attempt to make savings in any area possible, one such area is the publicly funded Bar. The Government commenced their campaign to cut Legal Aid with the Legal Services Act 2007, and they continue to attempt to do so, as can be seen in the recent proposals of the Ministry of Justice in the consultation paper, ‘Legal Aid: Funding Reform’.
It is true that there is less money to be made at the Criminal Bar than there once was. This has led to the view that fewer talented individuals will pursue a career at the Criminal Bar, as with their qualifications, they could practise in an area where money still flows. Whilst this may be the case for a minority of individuals, it can be seen that there may actually be the opposite effect: individuals with a real passion for the Criminal Bar may not care about how much they earn and will pursue a career at the Criminal Bar nonetheless, leading to more dedicated advocates. This having been said, it may be the case that better qualified individuals do come to the Criminal Bar but seek the work where there is money to be made, i.e. privately funded. This could lead to a reduction in talented advocates willing to do the ‘every day’ criminal work. Another conclusion that flows from the lack of funds is that the Bar may take steps backwards in terms of the diversity. The income for a barrister undertaking publicly funded work will be so low that only those who are very wealthy or have a second income will be able to undertake it. This may mean that all of the hard work put into diversifying the Bar will be undone.
The Courts and Legal Services Act 1990 created an additional threat to the Criminal Bar. S27 created the possibility of solicitors qualifying and practising as higher court advocates. Although uptake was slow at first, current estimates state that there are approximately 4000 higher court advocates. This can be attributed to the cuts in Legal Aid, resulting in solicitors attempting to save money by keeping work in-house. However, although higher court advocates have become more predominant in recent years, it remains the case that members of the Criminal Bar undergo much more rigorous advocacy training, resulting in specialist advocates, for whom there will always be a need.
Another increasing trend has been for solicitors firms to employ barristers. Employment tempts those who are worried about the future of the Criminal Bar. Since 2004, the Crown Prosecution Service has also taken advantage of this, recruiting Crown Advocates to keep work in house rather than instructing those at the self-employed Bar (although this has slowed somewhat in the past two years, with the CPS only increasing the number of Crown Advocates by 9 from 2009 to 2010). Whilst it is likely that more barristers will chose employment, it cannot be said that this alone will ruin the Criminal Bar. Employment goes completely against one of the central traditional values of the self-employed Bar: independent, un-bias advocates, whose first and overriding duty is to the court. Whilst individuals exist who believe in this core value, they will continue in self-employment and the Criminal Bar will continue to exist.
As things are, it looks as though we are headed towards a situation that may become one profession, against another; solicitors versus the Bar. The relationship between the two professions has always been a little strange; however with the Government looking to make cuts where ever it can, the relationship has become increasingly strained. Solicitors firms are looking to save costs in any way they can, whilst members of the Criminal Bar are fighting to survive. This is evidenced by solicitors keeping work in-house (as discussed above), and with the Bar it can be seen by the fact that Chambers are developing direct access schemes. If things continue in this way then it is clear that one profession, if not both, will suffer in the future.
One of the suggested ways forward is for barristers and solicitors to form partnerships termed Legal Disciplinary Practices, made possible by the Legal Services Act 2007. A system such as this could mean a step is taken towards the American System, however in his 2010 symposium entitled, ‘The Future of the Bar’, Nicholas Green QC stated that whilst he believed the trend of LDP’s would increase, the traditional self-employed nature of the Bar would continue. A more traditional way forward would be for Chambers to adopt the ProcureCo model, where corporate entities are established to obtain business for barristers, but if other services are also needed (e.g. solicitors/experts/police station representatives), the ProcureCo can also source these. This is the route that senior figures of the Criminal Bar are predicting.
Whilst the current outlook is bleak, it is clear that the Bar Council and the Criminal Bar Association are working hard to create a future where the Criminal Bar still exists in a recognisable form, and although in the next few years it is likely that the landscape will change in a number of ways, the Criminal Bar will come out fighting.
2011 Interview Notification Dates for Pure Crime Sets
Below is a table made up of information taken from last year’s "Have You Heard" forum, showing the dates when some candidates received notifications from Chambers regarding their application.
Please note, this is just to give you a rough idea of when you might expect to hear from these Chambers. It should be remembered that a) Chambers often stagger their replies to applicants and b) there is nothing to suggest that they will follow the same timetable this year. The only way to keep up to date with whether other candidates have heard back from a Chambers you are waiting on this year, is to keep checking back to the TPP Have You Heard forum. You can also follow us on Twitter where we will announce any notifications that appear on HYH.
If there are any that have been missed, or you know any of the missing dates in this table then please email email@example.com.
Topical Issues for Criminal Chambers Interviews
The majority of those who have been successful in obtaining pupillage all have one thing in common; they prepared for interviews by first compiling a list of topical issues, and then writing down a few points on the arguments on either side for each.
Criminal Chambers are beginning to send invites to first round interviews, so I thought it might be useful to create a list of topics which may come up in interviews this year. This is not intended to be an exhaustive list and there is no guarantee that all or any of the topics come up but this list should provide a good starting point. Keep reading weekly posts for detailed posts on each subject.
If you wish to use this content in its current form, then please contact me first at the above email address.
- Should members of the criminal Bar unite and strike?
- The future of the criminal Bar
- Is the time for Jury trials over?
- Cameras in the court room
- Social media vs. the Courts
- The Leveson Enquiry
- Human Trafficking – victims or criminals? (s109/110 POFA, S.B. Moldova v Sec of State for the Home Department)
- Assisted suicide
- Anders Breivik trial
- Abu Qatada’s detention and deportation
- Prisoner voting rights (Scoppola)
- The right to defend one’s property (self-defence) (s148 LASPO)
- Provocation (R v. Clinton and Others)
- Anonymous witnesses and hearsay evidence (Al-Khawaja and Tahery)
- Joint enterprise (R v. Gnango)
- Secret trials (Justice and Security Bill)
- Quality Assurance Scheme for Advocates
Family Law News
Editor: Emmi Wilson
If you have any suggestions, please email me at: firstname.lastname@example.org
The Pupillage Pages will be posting regular, weekly updates regarding the latest stories of interest in family law. We will be covering cases, articles, news stories and more. Keep checking the page regularly and you can follow us on twitter @TPPfamily.
Family justice review: interim report
Two weeks ago the Family Justice Review panel published its interim report. Those aspiring to practise in family law should familiarise themselves with the highlights as it might well come up in pupillage interviews.
If haven’t got the time or stamina to read the entire 232 pages of the interim report, read the introduction, executive summary and recommendations, which are a surprisingly easy read and very informative. The report puts forward recommendations for consultation - the panel will then publish its final report in the autumn.
However, the Ministry of Justice have indicated that they plan to publish a Bill to reform the legal aid system, including family legal aid, before the summer recess, and it is unclear how the Bill and the final report will interrelate.
The report praises those who work in the family justice system, noting that it is demanding and stressful. It describes the current delays in the system as “scandalous”, particularly when they involve children. The uncertainty of children’s situation and status causes a detrimental impact on their development at critical stages. In 1989 the aim was to resolve public law children cases in 12 weeks. By 2010 the average time to conclude such cases has risen to 53 weeks. The report describes rising caseloads as only one cause of the problems, and states “the system does not work coherently”.
In private law, it suggests there is a need to diffuse the adversarial nature of proceedings. This is an excellent aim, but oddly, the report does not propose to introduce ‘no fault’ divorce, which would be a quick and easy way to reduce at least some animosity when marriages break down.
The report also recommends the introduction of an online information hub and helpline to provide comprehensive information about the process of separation and divorce. This is an excellent idea but requires funding, which is in short supply in Whitehall.
The report notes that “time and effective planning will be needed to ensure successful implementation”. But it will also need money. So long as the Ministry of Justice is trying to find £2bn in savings over the next three years, it is hard to see how the Government will be enthusiastic about accepting recommendations that require further investment, even if they will provide savings in the long-term.
Click here to view an article in Family Law Week, which includes a summary of the recommendations and comments from the Family Law Bar Association, Resolution and others.
Click here to view the entire report.
Loss of Expert Immunity: Impact on Family Law?
The case of Jones v Kaney  UKSC 13, in which the Supreme Court abolished the immunity of expert witnesses in civil actions, has received widespread publicity in the legal press. Click here to read an overview of the case in the General Civil Law News section of The Pupillage Pages.
Family law practitioners will have a watchful eye on the impact of this decision.
Lord Phillips noted the concerns expressed by Thorpe LJ in Meadow v General Medical Council  EWCA Civ 1390 about the demand for medical experts in family cases exceeding the supply, along with increasing disincentives for such experts to act. Thorpe LJ wrote at para 232:
“The volume and the nature of the public criticism of Professor Sir Roy Meadow caused anxious concern to the President and Council of the Royal College of Paediatrics and Child Health. Members of the Royal College were either withdrawing from or declining to enter forensic work, a vital ingredient of overall child protection services.”
In Jones v Kaney, Lady Hale at paras 184 et seq expressed concern about the potential impact on family proceedings, and the complications that can arise when it is unclear whether an expert will be liable to the parent(s), the local authority, or even the child. She suggested that the issue is more appropriate for consideration by Parliament rather than by the courts.
This case has troubled, amongst others, the Chairman of the Expert Witness Institute and the President of the Association of Child Abuse Lawyers (see article below in The Independent). However, Guy Mansfield QC suggests that it is unlikely to have a negative impact on medical experts (see article below in UK Human Rights Blog).
The impact of Jones v Kaney on family law and child protection will remain to be seen. As Lady Hale wrote:
“It is impossible to say what effect the removal of immunity will have, either on the care with which the experts give their evidence, or upon their willingness to do so.”
Click here to read the Judgment in Jones v Karney.
Click here to read the Judgment in Meadow v GMC.
Click here to read an article in The Independent: “Ruling on expert witnesses worries child-abuse lawyers”.
Click here to read Guy Mansfield QC’s analysis in UK Human Rights Blog.
What is Collaborative Law?
Collaborative Law is a type of alternative dispute resolution for couples who are separating or ending their marriage. It is a relatively new process - it began in America in 1990 and has been used in England and Wales since 2003. The aim is to resolve family disputes without resorting to litigation.
In mediation the parties meet with one neutral mediator. In Collaborative Law each party has their own lawyer specially trained in Collaborative Law.
The process involves a series of face-to-face meetings to try to reach agreements about areas such as finances and contact with children. These meetings are sometimes referred to as ‘four way’ meetings, as they involve both parties and their lawyers. The two lawyers will normally meet or speak with each other prior to the meetings to agree the agenda and how the meetings run.
The first meeting will include all four participants signing an agreement making a commitment to reach an agreement without going to court. The discussions in the meetings are private and confidential and cannot be referred to in litigation if the process breaks down. Other professionals may be brought in to assist, such as financial planning experts. As agreements are reached, the lawyers draft consent orders.
Collaborative law only works if both parties are committed to working together to reach an agreement. It can be used effectively when the parties would like to avoid the animosity of litigation and want to maintain a positive relationship in the future. It is not appropriate for relationships that have a history of abuse or violence.
The use of barristers in Collaborative Law is increasing. For example, 29 Bedford Row (click here) currently have 17 members trained as Collaborative Counsel, who can be instructed jointly by both parties as an expert, or individually where both parties require Collaborative Counsel.
Click here to visit the Resolution website to read more information about Collaborative Law. It is well worth prospective family law barristers having an overview, as its use is likely to increase in the coming years.
Media Reporting in Family Cases: A Recent Bust-Up
Although it hasn’t gained nearly as much coverage as super injunctions, there has recently been a bit of a bust-up between HHJ Bellamy, legal bloggers and Christopher Booker, a journalist for The Telegraph.
The family justice system is clearly a bugbear for Mr Booker. Click here to read his recent analysis of the David Norgrove’s interim review, titled “The family justice system is callous, corrupt and staggeringly expensive”.
Last week, the case of L (A Child: Media Reporting), Re  EWHC B8 (Fam) (18 April 2011) was reported on Bailii – click here to read the judgment. The judgment concluded with salient points on legal reporting of family law cases. It specifically criticises Mr Booker for writing an account of the case, based solely on conversations with the mother (click here to read one of the offending article).
HHJ Bellamy wrote in the judgment:
“…this underlines the dangers inherent in journalists relying on partisan and invariably tendentious reporting by family members and their supporters rather than being present in court to hear the evidence which the court itself hears.”
HHJ Bellamy went on to highlight both the important role that the press plays in reporting problems, but also the responsibility of journalists to write balanced and accurate articles:
“The freedom of the press to highlight shortcomings in the family justice system encompasses not only the right to publish but the right to editorial freedom in the way in which stories are written…".
“However, we should not lose sight of the fact that journalistic freedom brings with it responsibility, not least the responsibility to ensure fair, balanced and accurate reporting. So far as concerns the reporting of issues relating to family justice, the public needs to have the confidence that what it reads in the press is indeed fair, balanced and accurate.”
Legal bloggers weighed in, supporting HHJ Bellamy in his criticisms. Adam Wagner, author of UK Human Rights Blog wrote:
“The thought of being personally criticised in a reported judgment would make most lawyers break into a cold sweat. Some journalists wear such treatment as a badge of honour.”
Click here to read Adam Wagner’s article “Judge: Telegraph reporting of family case was ‘unbalanced, inaccurate and just plain wrong”.
Click here to read a detailed blog by Lucy Reed, family law barrister and blogger.
I would encourage those waiting to hear about pupillage interviews to read the full judgment, as it covers other areas of interest, such as questions to be resolved in non-accidental injury fact-finding hearings and the appropriateness of parents being led out of a hospital in handcuffs.
President of Family Division encourages publication of expert reports
On 11 May, Sir Nicholas Wall, the President of the Family Division, handed down the judgment in the case of XYZ: Morgan v A Local Authority  EWHC 1157 (Fam).
The case concerns care proceedings commenced by Coventry City Council in 2008 regarding three children – X (13), Y (10), and Z (8). The proceedings were originally before His Honour Judge Bellamy, sitting as a judge of the High Court.
In February 2010, Judge Bellamy allowed the local authority to withdraw the proceedings and made a costs order against the local authority. In his judgment, Judge Bellamy was very critical of Dr M, an expert who provided a written report. However, he did not hear oral evidence from Dr M and therefore the criticism was not put to Dr M, nor was Dr M given the opportunity to respond.
An application was later made by Brian Morgan, a freelance journalist, for the media to name Dr M. This application was then listed before Sir Nicholas Wall.
Sir Nicholas stated that when the case came before him for directions in January 2011, he realised “that it raised a number of broader issues relating both to the circumstances in which expert witnesses in family proceedings should be identified, and transparency in family justice generally”.
He identifies two main arguments against disclosure:
The first could be remedied by giving Dr M the opportunity to openly defend his work, which requires disclosure of his report and release from his duty of confidentiality. Sir Nicholas stated that the second argument troubled him more, as there are increasing disincentives for experts to undertake child protection work.
- Dr M’s anonymity was protected by Judge Bellamy because he did not hear Dr M give evidence, and
- Anonymity of expert witnesses protects them from vilification and encourages them to undertake child protection work.
However, he found the arguments for disclosure to be more compelling. He clearly believes that the Family Justice System should be “as transparent as possible, consistent always with the need to protect the identities of the children who are involved in it”.
He goes on to state that there are a number of ‘myths’ about the role of experts which must be countered. Experts are not ‘hired guns’ who support whichever side pays them, and judges do not decide cases on the evidence of expert witnesses alone.
Sir Nicholas ruled in favour of identification of Dr M, but made two further points. He made a specific plea to paediatricians to undertake work as expert witnesses in child protection work. He also stated that there will be cases were the anonymity of the expert will need to be preserved, for example, if a child refused to engage with a medical expert if the expert will be named.
Simply identifying Dr M is not sufficient, as it does not allow him to counter the criticisms made against him, which is “the worst of all worlds”. Real transparency can only be achieved by disclosure of a redacted version (redacting the names of the children and parents only) of Dr M’s report. The names of treating physicians should not be redacted, as the risk of the children being identified is minimal.
In this case, the ECHR Article 10 right of the journalist to freedom of expression prevailed over the ECHR Article 8 right of the children to respect for private and family life.
What implications does this have for the future? Sir Nicholas stated “I would therefore like to see a practice develop, in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings. This would mean that the views of the judge on the expert evidence would also be disclosed.”
He goes on to say that “the jury will be out to see what use the media make of the information”. If it is used for fair and balanced reporting and debate, then this will be beneficial. However, “if the system is abused, the media may well find judges reluctant to order disclosure”.
As Piers Pressdee QC stated (click here), “the ball is in the media’s court” – the way in which journalists use this information in the coming months and years will determine whether identification and disclosure will continue.
Twitter in court: FLBA consultation response
In December 2010, the Lord Chief Justice issued interim guidance on the use of live, text-based communication from court. Click here to read the guidance. The guidance relates to proceedings which are open to the public and not subject to reporting restrictions. Earlier this year, a consultation was published and comments were specifically sought from family practitioners (click here to read the consultation).
The FLBA responded to the consultation – click here to read the full response. Below is a quick-fire list of some points made in the response:
- Accredited press representatives may now attend and report on family proceedings unless there has been a specific order prohibiting their attendance.
- Although judges and family practitioners have sought to welcome the press into proceedings, very few actually attend.
- There has been extensive debate amongst the press and practitioners around the balance between privacy of children and families, and transparency and accountability of the family justice system.
Response to consultation
- Quality and breadth of reporting is crucial to enhancing the public debate about the strengths and weaknesses of the family justice system, particularly at a time when interest (and criticism) is increasing.
- Poor or inaccurate reporting might impact unfairly on proceedings or deter individuals from bringing proceedings. This risk is mitigated by encouraging the press to attend court and watch and understand proceedings.
- If live, text-based communications are to be permitted in family proceedings, there must be unambiguous guidance as to the circumstances in which it is appropriate.
- In matters involving children, it should only be permitted when the court has specifically granted permission and therefore would not be the norm.
- It would not normally be appropriate for live text-based communication of evidence to take place.
- There is a risk that complicated reporting restrictions may lead to the parties inappropriately communicating information, such as sensitive medical information, history of abuse, or the location of a domestic violence victim.
- There is a further risk that the parties may feel inhibited in giving evidence, or that experts will be deterred out of fear of vilification or misreporting.
- Permission to communicate with live text-based reporting should only be given to accredited journalists and qualified lawyers, who will be familiar with the legal restrictions and subject to professional obligations.
- The consultation is now closed - a response from the judiciary will be published in due course.
Sharia courts have been openly operating in the UK since 2007, when the Arbitration Act 1996 was interpreted as allowing sharia courts to act as arbitration panels under the Act. This makes the decisions of sharia courts legally binding in the English courts provided that both parties agree to the proceedings.
Earlier this month Baroness Cox introduced the Arbitration and Mediation Services (Equality) Bill in the House of Lords to tackle the discrimination of women in sharia courts. The Bill's proposals include:
- Making it a criminal offence to falsely claim jurisdiction to adjudicate on a matter which ought to be decided by the criminal or family courts, punishable by up to five years in prison.
- Prohibiting arbitration tribunals from dealing with matters of family law (such as divorce or child custody) or criminal law (such as domestic violence).
- Prohibiting sex discrimination in arbitration tribunal proceedings.
- Making it easier for a civil court to set aside a consent order or other agreement if it was reached under duress.
Baroness Cox said:
"Through these proposals, I want to make it perfectly clear in the law that discrimination against women shall not be allowed within arbitration. I am deeply concerned about the treatment of Muslim women by Sharia Courts. We must do all that we can to make sure they are free from any coercion, intimidation or unfairness.”
That sounds good in theory, but it is not a straightforward matter, and some concerns have already been raised in the Muslim community about the proposals.
Arguments for limiting sharia courts
- There is an obligation on the state to promote equality and human rights, which involves tackling discrimination against women.
- It is inherently unfair in that a woman's testimony is worth half of a man's, a woman must give justifications for a divorce whereas a man does not, women have fewer rights in child custody disputes, and sons inherit twice the share of daughters.
- Whilst it is necessary for both parties to enter the proceedings voluntarily, some argue that women are often pressurised by their families to accept unfair outcomes.
Arguments against limiting sharia courts
- It may cause the courts to be pushed underground, or other more harsh forms of community justice may be used.
- Everyone should have the right to resolve personal disputes (including family disputes) in front of the tribunal of their choice.
- Many Muslim women use sharia courts to break forced marriages, as they feel the need to have a cleric's involvement.
“What isn't wrong with sharia law?” from the Guardian, 5 July 2010“The state cannot curb sharia law alone” from the Guardian, 9 June 2011
Reform of Legal Aid in England and Wales
Reform of Legal Aid in England and Wales: the Government Response
Just when we are agonising over pupillage applications and interviews, the Government has published its response to the legal aid consultation, along with the Legal Aid, Sentencing, and Punishment of Offenders Bill.
The Government is desperately trying to save money by making ill conceived, piecemeal changes to the family justice system, at a time when the Family Justice Review has not issued its final report (due in the autumn).
What changes are in store?
Abolishing legal aid for advice and representation in private family law cases.
Whilst the Government try to suggest that this will save money, it will in fact bring larger numbers of litigants in person into the family courts, which will substantially increase the amount of court time taken up. Additionally, there are many private law cases where there are allegations or a risk of abuse to children, but the Government’s criteria for legal aid will leave out a significant number of these cases. Apparently it doesn’t matter to the Government that only 3% of the 5,000 odd responses to the consultation were in favour of this proposal.
Legal aid will be allowed in domestic violence cases, BUT…
…it is estimates that more than 40% of victims of domestic violence who are currently entitled to legal aid will be denied it in the future. To be fair, the Government has widened its previous definition to include not just physical violence; however, the FLBA argues that it does not go far enough and that many vulnerable individuals will be left without legal aid.
Mediation will be promoted.
The Government is very keen on mediation, but its value is limited if individuals do not receive appropriate legal advice. Mediation is most effective when it is supported by legal advice and representation, and if only one individual is represented, this will exacerbate concerns and fears in the unrepresented party about the process, making it less likely to succeed.
10% cuts in fees for family lawyers.
88% of respondents to the consultation opposed this proposal, but it is always too easy for the Government to slice legal aid fees. Will this cause solicitors firms to close up shop, or cease to do family legal aid? Almost certainly. Will this cause talented individuals to have second thoughts about pursuing a career at the publicly funded family Bar? Probably.
Click here to read the 287 page Government response.
Should children be allowed to give evidence?
The best article topics are those which relate to actual pupillage interview questions. I was recently asked this question at an interview, and have seen reports of similar questions being asked at other sets in previous years.
The Supreme Court ruled on this issue in 2010 in Re W (Children)  UKSC 12. Prior to this, the starting point was that it was undesirable for children to give evidence in care proceedings, and that particular justification would be needed to depart from that approach.
In Re W (Children), it was argued that such a presumption could not be reconciled with Articles 6 (right to a fair trial), 8 (right to respect for private and family life) and 10 (freedom of expression).
Arguing against the change in the presumption, it was put forward that the entire purpose of care proceedings is to protect the interests of the children and therefore they should not be traumatised by being compelled to give evidence.
The Court ruled that, whilst it may not be appropriate for children to give evidence in many circumstances, this should not result in a presumption or starting point that they shouldn’t give evidence. Instead, the court should weigh two considerations: the advantages that the child’s evidence will bring to the determination of truth, and the damage it may do to the welfare of the child.
When considering the first issue, the court will have to consider several factors, including: the issues it has to decide to determine the case, the quality of the evidence it already has, the quality of the interview of the child, the age and maturity of the child, and the length of time since the events in question.
When considering the second issue, again the age, maturity and length of time since the events in question are relevant, along with: the support the child has from family or other sources (or the lack of it), the child’s own wishes and feelings about giving evidence, the views of the child’s parent or guardian, potential delay to the proceedings, and the potential for having to give evidence twice if there are parallel criminal proceedings. Lady Hale wrote “We endorse the view that an unwilling child should rarely, if ever, be obliged to give evidence.”
There are also special measures that the Court can put in place to maximise the advantage and minimise harm, such as ensuring that questions challenging children’s accounts are put to them fairly so that they can answer them, cross-examination by video-link, and questions being put to children by an intermediary, such as the Court itself.
These issues should be considered at the case management conference or at the earliest directions hearing, rather than leaving it to the parties to raise.
Marriage: the Gold Standard?
Sir Paul Coleridge, a practising family judge, launched the Marriage Foundation at the beginning of this month. This independent charity seeks to champion the institution of marriage as the “gold standard for relationships”. Mr Justice Coleridge has put family breakdown and the “significant and widespread consequences” this can have on the lives of children as the Foundation’s most fundamental concern.
The rationale for this public campaign is said to be rooted in evidence that proves “married relationships are more stable than others”, with children of such relationships doing “better in life”. The Marriage Foundation claims to help young people to “realise their dreams” and live within the security of the lifetime commitment that marriage promotes. Statistics to support this argument can be found here.
This championing of marriage as the gold standard is controversial for a number of reasons. Firstly, it must be questioned whether Mr Justice Coleridge is wise to take such a strong stance in relation to what, as Joshua Rozenberg has pointed out, is verging on political territory. Do the views of Sir Paul Coleridge hinder his ability to try cases “without fear or favour, affection or ill-will” in accordance with the judicial oath? The Office for Judicial Complaints is currently investigating this very issue.
More fundamentally, there is a divergence of views regarding the ability of the marital institution to aid in the achievement of the Foundation’s said aims. There are those who applaud the judge’s “refreshing” attitude towards upholding the structures of society. Others are more sceptical, identifying the Foundation’s failure to recognise the “easy cohesion and pragmatic, quotidian bonds that cohabitation, civil partnerships and joint bank accounts can bring”.
The Foundation has been said to have gay marriage as its “blind spot”, causing concern amongst family lawyers that an opportunity has been missed to support gay marriage. From a feminist perspective, questions are raised regarding whether the Foundation threatens the progress that women have made in recent years in achieving gender equality. Forceful criticisms are also being made of the Foundation’s focus upon marriage at the expense of tackling the root cause factors of family breakdown. As the Cambridge Family Law Practice have questioned, can making it harder to get out of relationships mean that bad relationships are made better, or that unhappy people are made happier and wealthier and healthier?
The Children and Families Bill
The Children and Families Bill
On 9 May 2012 the Queen delivered her annual speech, proposing a new Children and Families Bill, designed to set out measures which will put families at the “front and centre of national life”.
What does the Bill seek to do?
1. Speed up adoption and care proceedings.
There will be a six-month time limit for family courts in England and Wales to reach decisions on whether children should be taken into care. The courts will also be required to consider the impact of any such delay on the child.
The Bill will stop local authorities in England from delaying adoptions in order to find a complete racial match for the child. This proposal has been received favourably, given that black children are three times less likely to be adopted than white children – Martin Narey, the government’s adoption adviser.
Beth Wilkins, a partner at JMW Solicitors, commented on the Bill in an interview with LexisNexis. It was pointed out that, whilst the proposals to reduce delay are undoubtedly well-intentioned, there is a concern regarding whether the resources will be made available to enable this change to be effected in practice.
2. Strengthen the rights of fathers to see their children following relationship breakdowns.
The government were clear in their disagreement with the findings of last year’s family justice review, which warned against introducing a legal presumption of shared parenting. Instead, ministers are proposing to make a “legislative statement emphasising the importance of children having an on-going relationship with both parents after family separation, where that is safe, and in the child’s best interests”.
Beth Wilkins comments that few family practitioners would deny the vital importance of facilitating such relationships. However, especially in private proceedings, the current problem is not the law itself but the agenda of some bitter parents. Unfortunately, therefore, it is anticipated that this promotion of child-parent relationships post-family-breakdown is an “impossible feat”. In other words, the Bill is seeking, in a very roundabout way, to try to change deep-rooted patterns of parental behaviour. Perhaps those parents who would be receptive to this message are doing the right thing already. Beth Wilkins suspects that ministers are merely telling the public “what they want to hear,” meaning that this Bill is simply “political window dressing”.
3. Offer better help for children with special educational needs (SEN).
It is proposed that, from 2014, the system of SEN statements will be replaced in England by a simpler process. This new procedure will provide statutory protection up to the age of 25, for those who go in to further education, rather than being cut off at 16.
The Queen’s Speech is available here.
The interview with Beth Wilkins can be accessed via the LexisNexis ‘current awareness’ tab. The relevant article was published on 25 May and is entitled ‘Children and Families Bill – A Step in the Right Direction?’ Interview by Kate BeaumontThe relevant article in the Guardian can be found here.
In an announcement on Friday 8 June, the Prime Minister, David Cameron, and the Home Secretary, Theresa May, confirmed that forcing someone to marry is to become a criminal offence in England and Wales. This is entirely distinct from the act of arranging for somebody to marry, which requires consent. It is unlikely that any draft legislation will be put before Parliament before 2013.
It is thought that the existing civil remedy will continue to exist alongside the criminal sanction, giving victims a choice regarding which legal route to pursue.
£500,000 will be allocated to assist schools and other agencies in detecting early signs of forced marriage over the next 3 years. A major campaign will also be launched this summer with the aim of raising awareness of the risk of forced marriage abroad.
The main concern with this move by the government is that criminalisation of forced marriage could drive the issue underground. Sameem Ali, Labour councillor and herself a victim of forced marriage, argues that legislation would deter victims from coming forward as this would involve implicating their own family in court.
Sameem Ali also raises questions regarding how this legislation would be enforced, given that most forced marriages take place abroad and therefore outside of the courts’ jurisdiction. She is of the view that the existing civil remedy is effective, as it allows the courts to remove passports from young people to prevent their parents from sending them abroad. The civil remedy is said to be more appropriate due to the lower standard of proof.
However, David Cameron says he has listened to these concerns. The Prime Minister anticipates that the comprehensive legislative package will be effective in preventing the forced marriage issue from being driven underground. He claims that there will be procedures in place to identify possible victims, support those who have suffered first hand, and prevent criminality wherever possible.
A further concern has been mooted regarding legal aid. Some have predicted that, where bail is granted to the perpetrator, legal aid will not be available. This has prompted questions regarding the adequacy of protection that will be afforded by this legislative move.
In summary, it would seem as though the core governmental aim is to send out a strong message that forced marriage is an intolerable offence. Whether the legislation will be effective in tackling the root cause of this concern is another thing.
The relevant BBC news article detailing the plans can be found here.
The article in The Guardian featuring the views of Sameem Ali is available here.
This is a very topical issue at present. Essentially, according to the Deputy Prime Minister Nick Clegg, the government propose to “push through” reform despite the heated debate that exists around the subject. Mr Clegg explained: “love is the same, straight or gay, so the civil institution should be the same too.”
The full force of the opposition to creating gay marriage comes directly from the Church of England and Roman Catholic bishops who are of the view that legislation would undermine the Church’s relationship with the nation and be subject to a legal challenge from Europe. The plans are predicted to permanently diminish the significance of marriage and are anticipated to lead to an unprecedented clash between the Church’s own canon law; that marriage is between a man and a woman, and that of Parliament.
The opposition of the Church is said to form three planks:
- A doctrinal justification: the Bible is replete with details such as those about King Solomon’s 700 wives; thus marriage must be between one man and one woman.
- The government’s plans will drive a wedge between civil and religious marriage.
- Human rights lawyers will drag clergymen against their will to the alter to authorise same-sex marriage. Although a credible point, Karon Monaghan QC of Matrix Chambers explains that Article 9 of the ECHR would provide ample protection for any cleric wishing not to bless gay marriages.
This week, a gay Tory MP, Nick Herbert, has launched an attack on the Church over the allegedly intolerant language it has used in relation to gay marriage. Herbert has stressed that the government do not intend to dictate to the Church, and highlighted that these proposals are not a finished agenda. Rather, there still exists a situation where even Premier League football players feel unable to announce their sexuality.
It has been suggested that the opposition of the Church lies on the wrong side of history, analogous to the British statesmen who resisted the female franchise.
The Law Society supports the government’s proposals. Law Society President John Wotton explained that their response is based upon a commitment to equality before the law and to equality and diversity in society generally.
Many relevant articles can be found on The Guardian’s gay marriage page.
The children’s minister Tim Loughton set out plans this week to amend the Children Act 1989 in order to give children a right to have a meaningful relationship with both parents. The government plans to strengthen the relationship between parents and children by enshrining in law a presumption that a child’s welfare is best furthered through involvement with both parents, post-separation, where safe.
Where one parent seeks to defy a court order requiring them to give access to the other parent, they could be faced with a new range of penalties including the removal of passports or driving licences and the imposition of home curfews.
It seems as though these plans are well-intentioned. The government has a clear wish to prevent delay, and early resolution is obviously of paramount importance to any child who is the subject of court proceedings.
However, various concerns have been aired regarding these proposals. In an interview with Kate Beaumont of the LexisNexis Legal Analysis team, Catherine Jones, head of family law at JMW Solicitors LLP, fears that the proposals do not address the real problem. Catherine Jones is of the view that current judicial attitudes already reflect this desire to promote shared parenting, and such an explicit provision could be counter-productive, fixing the minds of parents with the idea that the law demands equality of care.
This talk of ‘rights’ could also cause much delay in the family court system, giving warring parents the foundations to seek to have their ‘right’ upheld in the courts regardless of other factors. This would clearly be contrary to the intention of Parliament.
The chair of the Family Law Bar Association Nick Cusworth QC has said that the government’s proposals, contrary to the Family Justice Review’s recommendations, is “little more than political posturing”.
As with all governmental reforms, we have to question whether they really are necessary or, as Nick Cusworth QC anticipates, they are political ploys in disguise.
ANS and another v ML
The Supreme Court in ANS and another v ML  UKSC 30 has decided that s 31 of the Adoption and Children (Scotland) Act 2007 (which is based on s 52 of the Adoption and Children Act 2002) is not incompatible with Article 8 of the ECHR.
The court was concerned in particular with s 31(3) (d). The appellant was the mother of a child who was the subject of adoption proceedings. She was opposed to the proposed adoption and refused to give her consent. The first respondents were the prospective adoptive parents.
Section 31(3) of the 2007 Act sets out the grounds on which the parent's or guardian's consent to the making of the adoption order may be dispensed with. In this case, one of the grounds relied on is that set out in section 31(3)(d). This provision applies only where neither section 31(4) nor section 31(5) apply: that is to say, where the court does not consider that the parent is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and is likely to continue to be unable to do so, or where the parent is not someone who is subject to an order removing parental responsibilities and rights and is unlikely to have such responsibilities or rights restored in the future. An adoption order may be made in these circumstances "where […] the welfare of the child otherwise requires the consent to be dispensed with."
The Supreme Court dismissed the appeal. The lead judgment is given by Lord Reed, with whom the other justices agree. Lord Hope and Lord Carnwath add brief concurring judgments.
The Supreme Court first considers the correct approach to interpretation where Convention rights apply. It notes that the special interpretive duty imposed by section 3 of the Human Rights Act 1998 arises only where the legislation, if read and given effect according to ordinary principles, would result in a breach of the Convention. If the ordinary meaning of the legislation is incompatible with the Convention, it is then necessary to consider whether the incompatibility can be cured by interpreting the legislation in the manner required by section 3. If the legislation cannot be construed in a manner which is compatible with the Convention, then it will not be within the competence of the Scottish Parliament [15-17].
In interpreting section 31 of the 2007 Act, the Court notes that it is premised on the need for parents to consent to the making of an adoption order. Section 31(2)(b) however confers a power, exercisable only by a court, to dispense with the consent of a parent on the grounds specified in section 31(3).
Secondly, the Court observes that those grounds are specified in greater detail than in section 52 of the Adoption and Children Act 2002, on which section 31 of the 2007 Act was based [24-29].
Turning to the precise wording of section 31(3)(d), the word "welfare" has to be read in the context of section 14(3), which requires the court to have regard to the need to safeguard and promote the welfare of the child throughout the child's life as the paramount consideration. The Court also considers that the court must have regard to the specific matters listed in section 14(4), so far as is reasonably practicable. Furthermore, section 31(3)(d) empowers the court to dispense with the parent's consent only if it is satisfied that the welfare of the child "requires" it. The word "requires" must mean, as a matter of ordinary English, that it is necessary [30-32].
That ordinary meaning is appropriate for several reasons. First, the court will not lightly authorise the making of an adoption order against the wishes of a parent. Secondly, the 2007 Act was intended to operate in the context of the Convention rights, and the duty of courts, under section 6 of the Human Rights Act, not to act in a way which is incompatible with those rights. It must therefore have been intended that section 31(3)(d) would be construed and given effect by the courts in a manner which complied with the Convention.
Thirdly, the 2007 Act is also to be construed in accordance with the presumption that it is not intended to place the United Kingdom in breach of its international obligations. The relevant international obligations include those arising under the Convention [33-37].
The Court next considers whether, construed on the basis of ordinary principles of statutory interpretation, section 31(3)(d) of the 2007 Act is incompatible with article 8 of the Convention. Having examined the relevant case law, the Court concludes that if the provision is applied as it considers it should be, then decisions made under it are compatible. Such decisions have a legitimate aim, namely to protect the welfare of children. Moreover, they meet the requirements of necessity and proportionality [38-43].
The Court rejects the contention that an order made under section 31(3)(d) is not "in accordance with the law", within the meaning of article 8(2), because the provision is so imprecisely expressed that it lacks legal certainty. Interpreted in the light of its statutory context, it is plain that "requires" imports a test of necessity. Although section 31(3)(d) leaves much to the judgment of the sheriff, that reflects the nature of the subject-matter of the provision. It is impossible to spell out exhaustively the particular circumstances in which an order dispensing with parental consent may be necessary. The application of the provision is foreseeable, provided the court interprets the provision correctly and bases its decision upon a reasonable assessment of the facts [45-49].
The Court regrets the delay in these proceedings, and makes suggestions as to how such delays might be minimised in future. [51-64].
This news item is derived from the Supreme Court's Press Summary, and is also available via Family Law Week.
Commercial Law News
Editor: David Fitzpatrick
If you have any suggestions, please email me at: email@example.com
The Pupillage Pages will be posting regular, weekly updates regarding the latest stories of interest in commercial law. We will be covering cases, articles, news stories and more. Keep checking the page regularly and you can follow us on twitter @TPPcommercial.
European Contract Law
On Tuesday 12th April 2011 the European Parliament’s Legal Affairs Committee approved a report that favours the creation of an optional European Contract Law instrument. This optional instrument arises out of an earlier European Commission Green Paper which explored different options for the harmonisation of systems of contract law within the EU. The Green Paper set out 4 options ranging from ‘no action’ to the full codification of a European law of contract. The Commission has argued that the various different legal systems constitute a barrier to cross-border trade within the European Union, and that therefore action at a European level is required. The current proposal envisages the creation of an optional European contract law regime, which could be used as an alternative to national contract law systems when the contracting parties so choose.
However, the proposal has met with resistance, especially from the Law Society of England and Wales, which perceives this optional regime to pose a threat to London as a hub for international commercial litigation. However, the opposition to the optional regime is based on more than mere protectionism and raises valid questions which can be summarised under 3 headings.
1. Insufficient purpose for justifying intervention
While increasing cross-border sales would assist in the integration of the internal market, it has not been demonstrated that the mere diversity of national contract laws in itself impedes trade. What actually impedes trade are practical matters, such as uncertainty on the part of consumers as to how to obtain legal redress when a problem arises in a cross-border contract, and it is these difficulties which European legislation ought to address.
2. Uncertain legal basis for legislation
In the Tobacco Advertising case it was held that the legislative basis in Article 114(1) TFEU can be used to adopt EC measures where those measures contribute to the elimination of obstacles to the exercise of fundamental freedoms. However, as has been argued above, it has not been demonstrated that different contract laws do genuinely obstruct the proper functioning of the internal market. It is therefore uncertain whether the EU has the requisite legal basis to legislate for the optional instrument proposed.
3. Practical Legal Uncertainty and Burden on the ECJ
The optional instrument would be of very little use, and would only serve to cause greater uncertainty, if different national courts interpret the provisions of the instrument in accordance with national jurisprudence. A codified contract law will necessarily be vague, and it would therefore be easy for a national court to shape it to fit national contract law. As a result, national divergences would continue. The only body that would be able to lay down authoritative jurisprudence on the interpretation of European contract law code would be the European Court of Justice. However, the ECJ is ill-equipped to handle such cases, firstly because it is a constitutional court with little experience in commercial law, and secondly because it is already experiencing difficulties in managing its current workload efficiently.
A further cause of legal uncertainty is the fact that many cases would raise issues which go beyond the scope of the optional instrument. If, for example, the European code covered matters relating to the sale of goods, a contract for the supply of both goods and services would still need to be governed by the contract law of a member state. A case may also throw up matters relating to property law, the law of trusts and tort. The uncertain interaction between these different areas of law with the optional instrument would cause great confusion
It is to be hoped that these serious questions are addressed, and that criticism of the proposed harmonisation is not simply dismissed as protectionism. If this harmonisation does go ahead, and the practical problems referred to in the third heading have not been properly addressed, we may find that this harmonisation would only serve to cause greater confusion on the market and thereby truly impede cross-border trade.
2010 Commission Green Paper: http://bit.ly/ibwJFGLaw Society response to the Green Paper: http://bit.ly/e2S95zEuropean Parliament committee vote in support of an optional European Contract Law: http://bit.ly/eXttDQ
Consumer Redress for Misleading and Aggressive Practices
On 12 April 2011 the Law Commission (jointly with the Scottish Law Commission) published a consultation paper, Consumer Redress for Misleading and Aggressive Practices, in which it proposed a reform of the way in which consumers obtain redress for misleading and aggressive practices.
In 2008, the Consumer Protection from Unfair Trading Regulations implemented the Unfair Commercial Practices Directive into UK law. They provide that businesses trading with consumers must not use “unfair commercial practices”. The problem with the regulations is that, by Part 4 of the Regulations, it can only be enforced by the OFT and trading standards services. The Regulations cannot be enforced by consumers themselves as they do not provide a basis for compensation claims.
Instead, consumers are forced to rely on existing private law rights. This body of rights is based on a number of statutory provisions, as well as case law. As such, the Law Commission found the existing law to be “fragmented, complex and unclear”, with the Misrepresentation Act 1967 in particular being described as “lacking in clarity”. The Protection from Harassment Act 1997 was found to give insufficient protection, as it applied only to a “course of conduct” by a trader, so that a single incident cannot give rise to a claim even if it is very serious.
The proposed reform covers three key areas:
- Misleading practices, especially with a view to clarifying and simplifying the law.
- Aggressive practices (such as high pressure sales techniques). The current law is described by the consultation paper as “ill-suited to consumer disputes” and as leaving “significant gaps in protection.”
- A new scheme of consumer remedies.
1. Misleading practicesUnder the proposed reform, whether there was a misleading practice would depend on the “overall presentation” as perceived by the average consumer. This approach would move away from the current law, which draws distinctions based on whether the misrepresentation is “false” or “factual”.
2. Aggressive PracticesThe definition of aggressive practices under the proposed reform moves away from domestic doctrines such as duress and intimidation, and refers instead to “coercion”, “harassment” and “abuse of power”. It also recommends a black list of actions which are prohibited by their very nature, similar to the black list in the Unfair Trading Regulations, as examples illustrating the coverage of the new Act.
3. A New Scheme of Consumer RemediesA new scheme of remedies that would apply if a consumer could prove that:
- an aggressive or misleading practice had taken place;
- it was likely to cause an “average consumer” to take a decision to enter a contract or make a payment they would not have taken otherwise; and
- it was a significant factor in the individual consumer’s decision.
The reform further proposes two tiers of remedies:
- The standard Tier 1 remedies, such as refunds or discounts, would be provided in all cases, with no additional proof of loss.
- The Tier 2 remedies would permit additional, specifically proven losses, and are similar to traditional damages.
Mediation Set To Grow Under New Framework
While the growth of mediation has received a lot of attention in family law, under Regulations which entered into force on 20 May 2011, mediation in commercial disputes is set to become an ever more important alternative to litigation.
Mediation is a method of alternative dispute resolution where the parties to a dispute attempt to negotiate via a neutral third party, who is selected by mutual agreement. Such a third party facilitates negotiations by being able to discuss the case with the parties individually, thereby removing some of the pitfalls of face-to-face negotiations. A mediator also facilitates negotiations by enabling parties to better understand their own case, the other side’s case, and the options available to them. There is often no determination of liability, rather the focus will be on achieving the best commercial outcome for the parties, regardless of their strict underlying rights and obligations.
The Cross-Border Mediation (EU Directive) Regulations 2011
The Cross-Border Mediation Regulations 2011 implements EU Directive 2008/52, which provides for a harmonised mediation regime throughout the EU (bar Denmark). Although the Regulations cover only cross-border disputes, they also encourage the growth of mediation in domestic disputes. This wider scope is evident from Article 1 of the Directive, which states that the objective of the Directive is “to facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation.”
The Directive further encourages the growth of mediation by requiring Member States to “encourage, by any means which they consider appropriate, the availability to the general public, in particular on the Internet, of information on how to contact mediators and organisations providing mediation services.”
A Requirement to Mediate?
In Halsey v Milton Keynes General NHS Trust  EWCA Civ 576, the Court of Appeal held that, while courts have a duty to encourage the use of mediation, they cannot force parties to use mediation against their will, as that would be contrary to the Article 6 ECHR right to a fair trial, and because forcing parties to mediate would not be effective, as mediation can only be successful if the parties are willing to settle their disagreement without recourse to litigation. However, it further held that where the successful party in litigation has unreasonably refused to agree to some form of alternative dispute resolution, the court may deprive them of their costs.
Article 5 of the Directive provides:
- A court before which an action is brought may, when appropriate and having regard to all the circumstances of the case, invite the parties to use mediation in order to settle the dispute. The court may also invite the parties to attend an information session on the use of mediation if such sessions are held and are easily available.
- This Directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system.
Article 5(1) is silent on whether courts can require parties to mediate, it provides that the court can “invite the parties to use mediation”, which is sufficiently open to interpretation.
Article 5(2), however, allows for the existence of national legislation making the use of mediation compulsory. This implies that the Court of Appeal was wrong to hold in Halsey that such compulsion would be contrary to the ECHR. It is arguable that the Court of Appeal was mistaken, as a requirement to mediate does not prevent the parties from litigating the matter, should mediation prove unfruitful. Besides further encouraging the use of mediation, the Directive therefore hints towards the possibility of compulsory mediation in civil and commercial disputes.
New Rules on Electronic Marketing and Cookies come into force
On 26 May 2011, the amended Privacy and Electronic Communications Regulations came into force, covering electronic marketing such as emails, faxes and text messages. It also includes changes to the rules for cookies on websites.
- is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information; and
- is given the opportunity to refuse the storage of or access to that information.
As a result, opt-ins represented by pop-ups are likely to be a regular feature of websites in the future. As for including the information in the website’s terms and conditions, the Guidance provides that “any attempt to gain consent that relies on users’ ignorance about what they are agreeing to is unlikely to be compliant.” As for websites accessed via a mobile device, the Guidance provides merely that consent be obtained via “some other way.”
The only exception to the rule is where it is ‘strictly necessary’ for a service requested by the user. This exception is described as being a narrow one. The Guidance provides that it might apply, for example
“to a cookie you use to ensure that when a user of your site has chosen the goods they wish to buy and clicks the ‘add to basket’ or ‘proceed to checkout’ button, your site ‘remembers’ what they chose on a previous page. You would not need to get consent for this type of activity.”
Organisations have 12 months to make sure they comply with the new rules. The Information Commissioner will now also have the power to serve a monetary penalty of up to £500,000 on organisations that seriously breach the rules. The requirements for a monetary penalty are that there must be:
- a serious contravention of the Regulations;
- the contravention was of a kind likely to cause substantial damage or substantial distress; and
- the contravention must either have been deliberate or the organisation must have known or ought to have known that there was a risk that a contravention would occur and failed to take reasonable steps to prevent it.
IP Reform: The Hargreaves Report
Released on 18 May 2011 Professor Hargreaves' greatly anticipated report, 'Digital Opportunity: A Review of Intellectual Property and Growth' makes far-reaching recommendations for IP reform in general, and copyright law reform in particular.
A key sentiment underlying this highly progressive report is that ‘[t]he copyright regime cannot be considered fit for the digital age when millions of citizens are in daily breach of copyright [...] People are confused about what is allowed and what is not, with the risk that the law falls into disrepute.’
Evidence-based intellectual-property policy
The primary, overarching, recommendation is that the government should ensure that intellectual-property policy is based on objective evidence, and that it should 'firmly resist overregulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators'. Specifically, the report concludes that the measurable impact of piracy across the whole economy is not as clear-cut as it is presented by industry lobbyist.
Changes to copyright licensing: a ‘Digital Copyright Exchange’
A radical recommendation is for the establishment of a 'Digital Copyright Exchange', a network of interoperable databases to provide a common platform for licensing transactions which would ‘make it easier for rights owners, small and large, to sell licences in their work and for others to buy them. It will make market transactions faster, more automated and cheaper.’ In terms of litigation, it is suggested that this Exchange would make the UK market in digital copyright one which is ‘better informed and more readily capable of resolving disputes without costly litigation’
The report also advocates legislation enabling the licensing of orphan works, copyrighted works for which the copyright owner cannot be discovered or contacted. A work should only be treated as an orphan if it cannot befound by search of the databases involved in the proposed Digital Copyright Exchange.
Copying should be lawful where it is for private purposes
The report concludes that an evidence-based approach to policy shows that it is necessary to rebalance the interests of rightsholders and consumers. To that end it proposes that the UK implement copyright exceptions already permitted under EU law. The report would therefore permit individuals to shift the format of a piece of music or video for personal use and to make use of copyright material in parody. It would also allow libraries to archive all digital copyright material and thereby prevent our cultural heritage from ‘rotting away’.
New Consumer Rights Directive Approved
On 23 June, The European Parliament adopted a new consumer protection directive, which updates and merges 2 existing directives, on Distance Selling (1985) and Doorstep Selling (1997), which set out certain minimum requirements. In particular, it will increase the protection of consumers in off-premises sales, sales by phone and online sales.
Exempted from the scope of the Directive are healthcare and social services, gambling, financial services, and real estate.
Right of withdrawal
The new rules stipulate a 14-day EU-wide withdrawal period for distance and off-premises sales, during which consumers may change their minds. If they regret the purchase, for whatever reason, they may return it. The price paid by the consumer for the goods must be refunded within 14 days of the withdrawal.
If a seller fails to inform a consumer about the withdrawal right, the period for withdrawal will automatically be extended to one year
An important exception to the withdrawal right are digital goods, such as music, films or software programmes, in those cases the sale will be regarded as irreversible from the moment downloading begins.
The seller must inform the buyer from whom they are buying, exactly what they are buying and how much it will cost when shopping online or ordering from a catalogue. There can be no hidden costs; the buyer will have to knowingly accept the total price before a sale is concluded.
In order to prevent overburdening small firms and tradesmen, "day-to-day transactions" where the good is delivered "immediately" will be exempted from the information rules.
Delivery and Transfer of Risk
Any good ordered at a distance must be delivered to the buyer within 30 days, otherwise the consumer will have the right to cancel the purchase.
Until delivery, the seller bears the risk for loss or damage to the goods.
A late addition to the Cookie mix
The move came only 48 hours before the expiration of a year-long grace period to comply with the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011, which mean that websites operators must now generally obtain users’ “informed consent” to cookies.
Early reporting on “cookies law”, which came in response to a revision of Article 5(3) of the e-Privacy Directive, seemed to suggest that implied consent would not suffice and that an explicit, opt-in style consent would be required for every cookie each time it was set. However, in its updated guidance the ICO has stated that implied consent “has always been a reasonable proposition in the context of data protection law and privacy regulation”.
In a blog, Dave Evans, the ICO’s strategic liaison group manager for business and industry, said that in order for implied consent to be valid, website operators must be “satisfied that [their] users understand that their actions will result in cookies being set.”
However, there appears to be no uniform answer as to what constitutes implied consent and analysts have already suggested that grey areas remain. For example, websites often sell some of their space for marketing purposes. Since this is auctioned to advertisers in real time, it is nearly impossible to alert the user immediately as to which cookies will be used.
Moreover, there has been poor harmonisation across Europe regarding the implementation of the Directive, with some Member States deciding upon a strictly opt-in policy for cookie use and others taking a more lackadaisical approach as to what constitutes “consent”; five Member States are facing financial sanctions for failing to consider the question. This lack of correlation is likely to make matters difficult for businesses which run websites in different jurisdictions.In the meantime, we should expect the issue of what is sufficient to constitute consent to proceed on a case-by-case basis and to be the subject of continued debate.
The Enterprise and Regulatory Reform Bill and Directors' Remuneration
The Enterprise and Regulatory Reform Bill and Directors’ Remuneration: A Move Towards Shareholders’ Voting Rights?
On 23rd May 2012, the Department for Business, Innovation and Skills published the Enterprise and Regulatory Reform Bill which, if passed, will effect a change in the corporate governance framework on directors’ remuneration.
One of the main concerns discussed at the government’s latest consultation in March 2012 was to address the disconnect between directors’ pay and long-term company performance by giving shareholders of UK-incorporated quoted companies more influence on the matter of executive remuneration through enhanced voting rights. This included proposals to give shareholders an annual binding vote on remuneration policy.
Under the Companies Act 2006, quoted companies are required to put their directors’ remuneration report to shareholders at the annual general meeting. Shareholders are then asked to approve of the report by way of an ordinary resolution. However, this resolution is merely advisory, and a company is not legally required to take any action in response to the vote, since section 439(5) states that “No entitlement of a person to remuneration is made conditional on the resolution being passed by reason only of the provision made by this section”.
Impact of the Bill on Shareholders’ Voting Rights
Should the Bill become law, clause 57 will repeal section 439(5) of the Act. However, as the explanatory notes make clear, this proposed deletion would not automatically have the effect of granting shareholders the power to exercise a binding vote on executive remuneration.
While the reform would, therefore, not be as wide-reaching as the proposals had suggested, the notes do state that companies may resort to section 21 of the 2006 Act. This would allow them to amend their articles of association by means of a special resolution and to establish the required shareholder power. A footnote to the BIS press release which accompanied the publication of the Bill, states that later in the legislative process, the government intends to further detail of how its proposals to give shareholders binding votes on executive pay will work in practice.
Other Aspects of Reform
The Bill also proposes draft legislation to establish a new Competition and Markets Authority, which would bring together the competition functions of the Office of Fair Trading and the Competition Commission. Improvements to the current employment tribunal system have also been detailed, in order to encourage parties to come together to settle their dispute before an employment tribunal claim is lodged.
The Bill is currently passing through Parliament and is due for its second reading at the House of Commons on 11th June 2012. Its progress can be tracked here.
For those interested in the employment aspects of the Bill, an excellent summary can be found here.
International Contracts: Approach with Caution
The recent case of Kingspan Environmental Ltd and others v Borealis A/S and another highlights problems which can arise for parties contracting in an international context.
Borealis sold a plastic polymer, Borecene to the claimants, Kingspan for the manufacturing of oil tanks. The material was supplied via Borealis’ UK subsidiary but was produced in its parent plant in Denmark. After a series of tank failures, Kingspan initiated proceedings for breach of contract on the grounds that the Borecene was not fit for purpose and that Borealis had made misrepresentations as to its characteristics.Borealis contested that Kingspan had failed to show that the Borecene was not fit for purpose and argued that improper use caused the tank failures. Borealis also claimed that the contracts were governed by Danish law and that the terms excluded all conditions and warranties as to quality or fitness for purpose of the goods supplied.Principal Issues
The Court had to determine:
- whether the contracts were governed by Danish or English law;
- the terms of the contract and whether they had been breached by Borealis; and
- whether Kingspan had a claim against Borealis for misrepresentation.
Mr. Justice Clarke held that since Kingspan had never objected to Borealis’ standard terms, Borealis was entitled to believe that they had been accepted. On a proper construction, the seller was the Danish parent company; since the company was domiciled in Denmark, the contracts were governed by Danish law. It was not considered relevant that Danish law provides significantly less opportunity to challenge limitation of liability provisions. Even if English law was applicable, limits on the exclusion of liability would not apply as the contracts were “international sales contracts” pursuant to section 26 of the Unfair Contract Terms Act 1977.
The Court held that as the contracts did not contain any express terms relating to quality, Kingspan could only rely on a breach of the terms implied by the United Nations Convention on Contracts of the International Sale of Goods 1980 Part 1, Article 35(2) which resemble the requirements of satisfactory quality and fitness for purpose contained in sections 14(2) and (3) of the Sale of Goods Act 1979. However, the Court deemed that Borecene was suitable for use in external fuel tanks and that Kingspan was responsible for the tank failures due to poor design, processing and quality control.
The Court had to determine which law governed the claim under the Private International Law (Miscellaneous Provisions) Act 1995. With reference to Trafgiura v Kookmin, Clarke J held that the rule under section 11(2) that tort claims are governed by the country in which the events constituting the tort took place should be displaced under section 12 as it was more appropriate for the law of the contract (i.e. Danish law) to apply to the misrepresentation claim. In coming to his conclusion, the Judge commented on the close connection between misrepresentation and contract. Since the doctrine of misrepresentation does not exist in Danish law, there was no viable claim.
CommentThe case should serve as a warning to parties contracting in an international context that they need to be sure which law governs both their contractual and non-contractual claims, as other legal systems will not necessarily afford the same protection as English law. They should also inform themselves of the terms on which they contract; the Court is extremely reluctant to come to the aid of those who do not help themselves, particularly when they are sophisticated commercial parties.
Further information on avoiding common pitfalls in international contracts can be found here.
Reform of Business Insurance Law
On 26th June 2012 the English and Scottish Law Commissions released a consultation paper setting out proposals for the reform of business insurance law. The paper covers two topics: (1) the business insured’s duty of disclosure and (2) warranties.
Why is Reform Being Proposed?
Much of the existing law is found in the Marine Insurance Act 1906, which sets out nineteenth-century practices and has thus required the courts to develop the law far beyond what is contained in statute in order for decisions to reflect contemporary practices.
A particular problem is that the law is weighted against businesses. For example, under section 18 of the Act, a policyholder currently must disclose “every material circumstance which it knows, or ought to have known “in the ordinary course of business” prior to a contract being concluded. This is often unclear and onerous for complex businesses with many employees. Moreover, the insurer’s remedy of avoiding the policy in the event of a non-disclosure is seen to be excessively harsh. The Law Commissions are, therefore, seeking to create a “more neutral” law that would “place reciprocal burdens” on both companies and insurers.
What are the Law Commissions Proposing?
The Law Commissions’ proposals include:
- Specifying that a material circumstance to be disclosed by the insured is one which provides a “fair presentation of the risk”.- Shifting the onus to the underwriter to ask further questions where the presentation of the risk poses potential problems.- Modifying the remedies available to the insurer in the event of a non-disclosure. The insurer’s existing remedy of avoiding the policy would remain where there is dishonest non-disclosure, in which case, insurers will also be entitled to retain the premium. In other non-disclosure cases, a proportional system of remedies may be introduced:
- Where the insurer would have declined the risk had it been aware of the true position, the policy would still be avoided, though the premium would be returned.
- Where the insurer would have taken on the risk but included another contract term, the contract would be treated as if it included that term.
- Where the insurer would have charged a greater premium, the claim would be reduced proportionately.
The Law Commissions propose three main changes:
- Abolishing basis of the contract clauses. These are terms in the proposal form which state that the proposer warrants the accuracy of the responses or that the answers given form the “basis of the contract”.
- A breach of warranty should “suspend”, rather than invalidate, a policy until the breach is remedied. Additionally, there would be a contractual, rather than statutory right to cancel on the part of the insurer.
- Where a term aims to reduce a particular risk, suspension of liability would only be in respect of that particular loss. This would also apply to a term relating to loss at a particular time or particular occasion.
The proposed reforms should be welcomed due to the fact that they look to build and improve on familiar insurance case law principles. In doing so, the Law Commissions have taken a sensible step back from more radical reform first mooted in 2007. For example, gone is the suggestion that material facts should be those which a reasonable insured, rather than a prudent insurer, would deem relevant to disclose.
The reforms should also reduce the chances of insurers refusing to pay claims as a result of an accidental or technical breach of the disclosure duty or of a warranty.
It is now vitally important that corporates engage fully in the insurance placement process to ensure that policies are properly tailored to the risks that businesses face. The Law Commissions seek responses by 26th September 2012 with the aim of producing a final report and draft bill by the end of 2013.
Information on other aspects of the Law Commissions’ review of insurance contract law, which began in 2006, can be found here.
Consultation on Consumer Bill of Rights
Following an announcement in September 2011, the Department for Business, Innovation and Skills (BIS) has launched its long-awaited consultation on a Consumer Bill of Rights for the UK. The consultation, branded “confidence for consumers, clarity for businesses”, seeks views on rights and remedies for goods, services and digital content under a contract.
UK consumer law is currently laid out across twelve different acts and sets of regulations. It is widely considered to be complex and inconsistent, and difficult to understand. Some businesses take advantage of this to deny consumers redress when things go wrong. Furthermore, services are not dealt with to the same extent as goods, while the law needs to modernize to keep up-to-date with developments in digital content.
The reform will also give the government a chance to implement the Consumer Rights Directive and, if it goes ahead, to consider the Common European Sales Law, which deals with specific state-related rules for contracts for the cross-border supply of digital content.
The proposals will not make any radical changes to the law but aim to set out a clear code and simple standardised remedies in one place.
The proposed changes will:
Norman Lamb, Minister for Consumer affairs, stated:
- Clarify the nature of consumers’ rights and remedies in relation to the supply of goods with clear statutory guarantees rather than an outdated system of implied terms. This would include the introduction of a fixed period of thirty days during which to reject faulty goods in most cases and a period of seven days to inspect repaired goods.
- Bring the services regime more in line with the regime for goods by strengthening consumer rights and remedies when a service fails to meet reasonable standards. The proposals include the establishment of a statutory guarantee for the provision of services and statutory remedies when rights are breached. The consultation also seeks opinions on the introduction of a “satisfactory quality” standard for certain services (for example, installation, repair and other services involving goods) in line with the goods regime.
- Bring the law up-to-date to protect users from faulty digital content. This would be done by introducing rights and remedies tailored for digital content, though it has been suggested that these be aligned as far as possible to the regime applicable to goods. The government is also seeking opinions on whether a short-term right to reject should form part of the regime, with fourteen days being the suggested period.
“…increasing consumer confidence will help markets work at their best. These measures will also help businesses save money by reducing the need for legal or dispute resolution costs.”
Adam Scorer at Consumer Focus welcome the Government’s proposals for reform of the “totally outdated law”, while warning that any changes should be “future-proofed” in consideration of further technological advances.
The proposals are open for consultation until 5 October 2012 and the government plans to publish its response by 5 January 2013.
Employment Law News
Editor: Ben Smith
If you have any suggestions, please email me at: firstname.lastname@example.org
The Pupillage Pages will be posting regular, weekly updates regarding the latest stories of interest in employment law. We will be covering cases, articles, news stories and more. Keep checking the page regularly and you can follow us on twitter @TPPemployment.
Equality Act 2010
Any pupillage applicant expressing an interest in an employment-based practise will need to be aware of the recently implemented Equality Act 2010. It is also likely that questions will be raised at interview about the scope and effect of this act and also what the changes will mean in practice. Naturally, the effects of many of the changes will not be felt until the Tribunal has had an opportunity to rule on the new legislation, and any relevant updates in this regard will appear on these pages at a later date.
There are however a number of changes which were / were not brought into force on 6 April 2011 that applicants will need to be aware of:
The implementation of s.159 of the Equality Act 2010:
S.159 permits positive action to be taken by employers in respect of recruitment or promotion of applicants with a protected characteristic [Please see http://bit.ly/dJieoH for a summary of these] over a person who does not have the protected characteristic.
Positive action in this way will only be permitted where it is reasonably thought that either, (a) persons who share the protected characteristic suffer a disadvantage connected to the characteristic and the taking of the action in question (recruitment/promotion) is a proportionate means of achieving the aim of overcoming or minimising this disadvantage; or (b) participation in an activity by persons who share the protected characteristic is disproportionately low and the taking of the action in questions is a proportionate means of enabling or encouraging persons with the protected characteristic to participate in that activity.
The caveats to this section are that: (a) the employer does not have a policy of treating person more favourably in connection with recruitment / promotion than those who do not share it and (b) the employee receiving preferential treatment is as qualified as their comparator to be recruited or promoted.
The implementation of the Codes of Practice of the Equality Act 2010 [These can be found at http://bit.ly/d3BWN5]:
The non-implementation of the “dual-discrimination” provisions at s.14 of the Equality Act 2010 as announced in the Government’s 2011 Budget [This can be found at http://bit.ly/eKHH0E at page 11]:
S.14 would have given employees the right to bring claims for direct discrimination on the basis of less favourable treatment suffered by them as a result of a combination of two protected characteristics (e.g. age and religion). Applicants will need to be aware of this important retreat from the Government and be prepared to comment on the practical implications, if any, on potential claimants going forwards. (It is anticipated that the practical implications will be covered in more detail in a later post).
Neil Marcroft v Heartland (Midlands) Ltd - Scope of TUPE Regulation 13
Neil Marcroft v Heartland (Midlands) Ltd (for full judgment, click on the name)– Scope of TUPE Regulation 13
Mr Marcroft was employed in the commercial insurance department of PMI Health Group Ltd with a responsibility for sales. Mr Marcroft’s contract included a restrictive covenant preventing him from approaching any of PMI’s clients with a view to transferring their business to a rival.
On 15/09/2009 Mr Marcroft submitted notice of his resignation, with the agreed expiration date of his notice being 26/10/2009. He was informed in a meeting on 25/09/2009 of the proposal to sell the commercial insurance business to Heartland, who had already agreed to buy it. It was agreed that Mr Marcroft would not attend the office, but would remain ‘on call’ at home as there was very little commercial work to be done. There was no consultation with Mr Marcroft about a transfer to Heartland and he received no paper work in relation to the transfer.
Between 25/09/2009 and 02/10/2009 when PMI entered into a formal agreement to transfer its commercial insurance business to Heartland there was no evidence of substantial work being done by Mr Marcroft but he did finalise some account details and field a few calls.
After the termination of his employment Mr Marcroft worked for a rival company and Heartland brought proceedings claiming that his employment had been transferred to them; and that it was entitled to sue for breach of the restricted covenant.
HHJ Platts found at first instance that Mr Marcroft was bound by the restrictive covenant irrespective of the sale of the commercial insurance department by PMI to Heartland.
Mr Marcroft argued that:
- he had not been assigned to the commercial insurance department under the meaning of regulation 2(1) of the TUPE regulations, either at all or only temporarily and that the Judge had failed to properly consider the issue of a temporary assignment; and
- there had been a failure to provide him with information to allow him to object to the transfer.
In respect of a) the Court of Appeal held that the first instance Judge had rightly found that Mr Marcroft had been assigned to the department despite doing other kinds of insurance work. He had also been entitled to reject the submission that the position had changed as a result of Mr Marcroft’s notice, on the basis of his continuing work and because it could not be right that an employee was automatically assigned on a temporary basis, thus losing the protection of the Regulations, as a result of giving notice.
In respect of b) the Court of Appeal held that the obligation imposed under regulation 13 of TUPE to provide employee representatives with information about the transfer in question did not extend to a requirement to provide Mr Marcroft with information personally. Further, even if the regulation 13 did extend this far, it fell on Mr Marcroft’s employer PMI, and not Heartland. The Court commented that if a failure to provide an employee with information about an impeding transfer rendered the transfer of the contract of employment ineffective and would undermine the protective purpose of TUPE as “the transferor employer in the position of PMI could always prevent a transfer by the simple device of not providing the employee's representative with information in compliance with Regulation 13.”
The abolition of the Default Retirement Age
The abolition of the Default Retirement Age (DRA) in the UK [via the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011] is the most significant legal development in terms of its widespread application to the populate, since the implementation of Human Rights Act in October 2000.
The Regulations are significant as they:
Prior to their implementation employers could legitimately retire employees based on the DRA provided that the correct procedural requirements were followed. However when the Regulations came into force fully on 6 April 2011, they repealed this previous law contained within the Employment Rights Act 1996. The sea-change in this regard is considerable as the effect of the Regulations is that retirement based on the DRA is no longer a fair reason for dismissal, and is expressly excluded as even a potentially fair reason.
- Affect the working lives of every employee in the UK;
- Remove from the employer the opportunity to place bare reliance on the DRA as a reason for dismissal and require them instead to either objectively justify, with evidence, the retention / imposition of an Employer Justified Retirement Age (EJRA); or to justify dismissal for one of the remaining potentially fair reasons;
- Are likely to have widespread cost implications for employers in the UK, which is particularly significant in times of ongoing austerity and cost-cutting in the business sector.
Employers therefore can no longer rely on the existence of the DRA as a reason for dismissing ageing employees and instead must either:
With regards the first option, the Equality Act 2010 makes it plain that an employer will discriminate against an employee on grounds of their age if they treat the employee less favourably than they would another. The caveat to this is that if the employer can show that this less favourable treatment is “a proportionate means of achieving a legitimate aim” then discrimination will be held not to have occurred.
- Be able to objectively justify the existence of any EJRA; or
- Assess each case individually and on its merits.
Based on remarks in the Seldon case and the wording of EC Directive 2000/78 on Equal Treatment in Employment and Occupation, potentially legitimate aims available to employers when attempting to justify the implementation / retention of an EJRA include:
Given the relative infancy of these provisions there is as yet no judgments on the approach the courts are likely to take in assessing the proportionality of any EJRA. However, since the aim of the legislation is to remove an arbitrarily set retirement age, it seems likely that the courts will adopt a robust approach in finding that the imposition of a EJRA is a proportionate aim, and employers will find it extremely difficult to justify their retention / introduction.
- Facilitation of employment planning;
- The need for physical fitness in the role;
- The need for a effective balance between recruitment, promotion and ‘retirement’; and
- The allowance for employees to retire with dignity rather than forcing an assessment of an employee’s falling off in performance as they get older.
The second option requires the employer to justify the dismissal of the employee on grounds of one of the potentially fair reasons for dismissal (i.e. conduct, capability, redundancy, illegality or some other substantial reason). This is also likely to cause employers problems as they will have to show that the reason given is genuinely the reason for dismissal and not one being used to mask the fact that the employer is discriminately retiring ageing employees.
The difficulty with this approach is that an ageing employee is likely to be able to point to a younger person whom is not performing as well and vice versa with the likely effect of disenchantment and finger-pointing within the workplace. Another potential pitfall is the fact that poor performance or absence from work may in itself be a consequence of the declining health of ageing employees and in some cases may engage the protection of the disability provisions of the Equality Act 2010.
It is clear that the change in the law brought about by the abolition of the DRA has drastically changed the way in which employers can treat ageing employees. This change has led to a reconsideration by all businesses in the UK on how they treat ageing employees and will also have a profound effect on the dynamic of the average workforce within companies across the UK.
Kurumuth v NHS Trust North Middlesex University Hospital
Kurumuth v NHS Trust North Middlesex University Hospital – Lawfulness of dismissal on the basis of an unclear immigration status
A full transcript of the case can be found at http://bit.ly/ffjZ2r.
The Appellant is Mauritian and arrived in the UK in 1992 on a work permit. In 1997 she was refused further leave to remain in the UK but appealed. She began working for the Respondent in 2001 as a ‘bank’ worker, and became a permanent employee in 2003. At this point in 2003 she provided the Respondent with a letter from the Home Office, dating back to 1997, stating that she was entitled to continue to take on paid work until her appeal was decided.
Following the introduction of the Points Based System the Respondent decided to investigate the situation and gave the Appellant opportunities to state what her status in the UK was; she did not. The Respondent also checked her immigration status with the UK Border Agency Employer Checking Service and received the unclear response of “we cannot confirm that this individual is currently entitled to work in the UK ."
Following a disciplinary procedure the Appellant was dismissed.
On appeal the Employment Appeal Tribunal found that the Respondent had acted fairly in dismissing the Appellant; this is despite there existing an element of evidence of the Appellant’s right to work (in the 1997 letter and a subsequent letter in 2008).
It was held that the decision was fair because following a reasonable investigation, during which the UK Border Agency were contacted by the Respondent on several occasions, the Respondent had a reasonable belief that the Appellant could no longer work in the UK.
It was acknowledged by the Tribunal that during this investigation the Respondent did not receive any clear statement from the UK Border Agency regarding the Appellant’s rights to work, but in light of the steps taken in trying to resolve this issue the dismissal was held to be fair.
It was confirmed in the judgement at (paragraph 19) that the Employment Tribunal is not the correct forum for determining an employee’s immigration status or right to work in the UK.
It was confirmed that employers do not require an absolute confirmation of illegality of immigration status or non-right to work in the UK before dismissing an employee. If a reasonable investigation has been undertaken and after this the employer reasonably believes that the employee does not have the right to work in the UK, then a dismissal on this basis can be fair.
Deduction from employee's wages whilst on remand deemed lawful by the EAT
The full text of the judgment can be found at Burns v Santander UK Plc  UKEAT/0500/10/RN
Mr Burns began working as a branch manager for Santander on 1 October 2007. On 8 February 2009 he was arrested and charged with 13 offences including physical and sexual assault; the following day he was remanded into custody. On 17 August 2009 he was found guilty of common assault and assault with intent to commit a sexual act. He was found not guilty of all other offences. He was then released on bail until 16 October 2009, at which point he was sentenced to a suspended sentence with community requirements.
Mr Burns was not paid by Santander throughout the period he spent in custody (He was informed of this intention in a letter dated 20 February 2009). When bailed on 17 August 2009 Santander suspended him on full pay until his dismissal following a disciplinary hearing heard on 3 September 2009.
Mr Burns subsequently lodged a claim with the Employment Tribunal in December 2009 on the basis of unfair dismissal, breach of contract, and unlawful deductions from wages and holiday pay.
The appeal related solely to the issue of whether the deductions made from his wages during the period he spent on remand were unlawful as claim by Mr Burns.
The Claimant’s case rested on an assertion that the event which prevented his absence from work was unavoidable as the decision to remand him in custody was one taken by the criminal court, and not by him. It was asserted that on this basis he was entitled to be paid his full wages whilst on remand.
The EAT accepted that the decision to remand the Claimant was the criminal court’s and not his, but commented that “Mr Walker (the Claimant’s representative) may or may not be right in saying that had the Claimant been charged only with the offences of which he was subsequently convicted then he may have received bail and then been suspended by the Respondent on full pay. However, that is not what happened and ultimately he was not acquitted on all charges.”
In light of this the EAT found that the following analysis offered by the Tribunal at first instance could not be faulted: “The Tribunal accepted that a worker who is ready and willing to perform his contract but is unable to do so by reason of sickness or injury or other unavoidable impediment is entitled to claim his wages. However, the Tribunal also accepted that a worker who is ready and willing to perform his contract but unable to do so by avoidable impediment is not entitled to wages. Although the Claimant had not been convicted of any offence at the time of the Respondent’s decision not to pay him he had conducted himself in such a way that, according to the Judge in the Criminal Court, he should be deprived of his freedom and therefore deprived of his right to attend work. This principle was confirmed by the fact that he was actually convicted of two of the nine charges at his trial and the six months spent on remand was treated as part of the punishment. It is true that the Respondent did not pay him but at the same time they kept his job open until a final decision could be made at a disciplinary hearing following the Claimant’s trial. They also paid him at the end of his time on remand when he was suspended on full pay.”
In the circumstances the EAT upheld the decision made by the Tribunal in stating that “the Tribunal was entitled to find that the Claimant’s remand in custody was an avoidable impediment giving rise to circumstances where it was to be implied that he was not entitled to his wages for the relevant period under the wage/work bargain that was the contract of employment between these parties.”
R (on the application of Sharon Shoesmith) v OFSTED & others
A link to the case can be found at R (on the application of Sharon Shoesmith) v OFSTED & ors
As most people will be aware, the Court of Appeal gave judgment in respect of Sharon Shoesmith’s appeal against OFSTED, Haringey London Borough Council and the Secretary of State for Education (Ed Balls).
The facts of the case are extremely well known and relate to the events following the death of Peter Connolly (Baby P) who died on 3 August 2007 at the age of 17 months. Tracey Connolly (his mother), Steven Barker (her boyfriend) and Jason Owen (Barker’s brother) were convicted of causing or allowing Peter's death contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004 on 11 November 2008. At the time of his death Sharon Shoesmith was the Director of Childrens’ Services at Haringley LBC and she was dismissed without any due process shortly after the conclusion of the criminal trial and under the direction of the Secretary of State for Education.
The Court of Appeal agreed with, and upheld, the judgment of Foskett J in finding that the report carried out by OFSTED in relation to Haringey LBC was carried out lawfully and in good faith. (Paragraphs 14 – 38).
In respect of the decision taken by Haringey LBC to dismiss Ms Shoesmith, the Court of Appeal commented that “whatever alternative remedy might be available in the Employment Tribunal, the dismissal would be amenable to judicial review.” The Court of Appeal held that the decision taken in this regard was unreasonable that the Ms Shoesmith “was entitled to be treated lawfully and fairly and not simply and summarily scapegoated.”
Secretary of State for Education
The Court of Appeal found that the pressure imparted by Ed Balls, and the direction which he gave to Haringey LBC to dismiss Ms Shoesmith was unlawful. In respect of the issue of urgency of action Maurice Kay J commented that:
“Whilst I accept that there was a degree of urgency, I do not accept that it was such as to necessitate a truncation of the requirements of fairness to the extent that occurred here. The question one has to ask is how much delay would have been occasioned by according Ms Shoesmith an opportunity to answer the charge. It seems to me that, as at 1 December, the delay need not have been more than modest and, in relation to 19 December, it may have been non-existent. This is not a case of a front-line social worker who may cause damage to individual children. It is one of a DCS, more than a year after the death of Peter, in circumstances where, one way or another, the position could have been safeguarded for sufficient time for fairness to be observed.”
The Court of Appeal found that this was not such a case where even if Ms Shoesmith had been awarded the opportunity to put her case that this would have made no difference to the inevitable outcome. The Court of Appeal held that Ms Shoesmith should have been awarded the opportunity to properly put her case before being dismissed.
Parmar v East Leicester Medical Practice
Parmar v East Leicester Medical Practice – Judicial Proceedings Immunity held to cover all kinds of discrimination, including claims of victimisation
A link to the case transcript can be found at: http://www.employmentappeals.gov.uk/Public/Upload/10_0490fhwwSBJOJ.doc
On 24 June 2008 Mr Parmar commenced proceedings against the Respondent under the Race Relations Act 1976. The Respondent served on Mr Parmar a number of witness statements in July 2009, and on 6 October 2009 the proceedings were dismissed upon it being held that s.32 of the Employment Act 2002 had not been satisfied.
Mr Parmar contended that the witness statements served in these proceedings contained untruths and that these untruths were uttered on the basis that he had brought the proceedings. On this basis, on 14 October 2009 Mr Parmar issued proceedings complaining of discrimination by way of victimisation and claimed compensation for the injury to his feelings which he says those untruths caused him.
On 7 July 2010 his claim was dismissed on the basis that the contents of the witness statements relied on were subject to “judicial proceedings immunity.” Mr Parmar appealed on the basis that the immunity does not stretch to cases of victimisation and the case of Coote v Granada Hospitality Limited  ICR 100 (in particular paragraph 24 of the judgment) was advanced in support of this contention.
The EAT found that to find that judicial proceedings immunity covered claims for victimisation was not in conflict with the underlying EU principles as addressed in the Coote case.
The EAT held that they were bound by the decision of Heath v Commissioner of Police of the Metropolis  ICR 329 in which the Court of Appeal made it clear that judicial proceedings immunity extends to claims made under the discrimination legislation as well as common law claims. The EAT commented that whilst the Court of Appeal was not directly concerned with the application of judicial proceedings immunity to cases of victimisation in the Heath case, it will certainly have been aware that discrimination could take the form of victimisation. Further, that the reasoning given in that case for finding that judicial proceedings immunity extended to include claims for discrimination applies equally to claims of victimisation.
MR K Oudahar v Esporta Group Ltd
MR K Oudahar v Esporta Group Ltd (UKEAT/0566/10/DA) – Unfair Dismissal, Health & Safety – Employer’s opinion irrelevant to employee’s belief of danger under s 100(1)(e) Employment Rights Act 1996
The Claimant was employed by the Respondent as a chef from 19 January 2008 until his dismissal on 12 December 2008. On 20 November 2008 maintenance work was taking place in the kitchen overnight, but in the morning this was incomplete. In the morning the Claimant’s manager asked him 3 times to mop an area behind the fryers which he refused to do. The Claimant stated that he refused to do this on health and safety grounds on the basis that there were wires coming out of the wall which had become exposed as a result of the maintenance works.
On 21 November 2008 the Claimant was suspended on the basis that he was in disregard for the health and safety and food hygiene procedures within the kitchen and he had refused to follow his manager’s instructions.
On 10 December 2008 a disciplinary meeting took place in which the Claimant stated that on any normal day he would’ve cleaned the floor but on this day he refused as there were tools and electric wires everywhere, the cookers were pulled out, the wire behind the cookers were unscrewed and hanging out and there was a plug socket with wires hanging from it. He stated that the maintenance manager was present on the day and advised him to be careful around the wires and the water.
The Claimant’s manager obtained a statement from the maintenance manager stating that the area he was asked to clean was free from danger and that the Claimant did not allege he was in any danger when asked to mop behind the fryers. The Claimant’s manager accepted the statement of the maintenance manager and dismissed the Claimant in part on the basis of disregard for food hygiene and in part as a result of a reason to obey instructions.
The Claimant lodged a claim on the basis that his dismissal was automatically unfair under s 100(1)(e) Employment Rights Act 1996 as he “in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from that danger”.
The Tribunal found that the principal reason for the Claimant’s decision was his refusal to follow the instructions as give on 20 November 2008. The Tribunal crucially placed weight on the fact that the Respondent, in dismissing the Claimant, had believed there to be no danger.
In the EAT it was reasserted that the Claimant’s dismissal was automatically unfair under s 100(1)(e) Employment Rights Act 1996 and that the Tribunal had erred in introducing a new element to the statutory test under s 100(1)(e) by placing undue weight on the Respondent’s belief that there was no danger.
The EAT found that in applying s 100(1)(e) the Tribunal should approach the question in 2 stages:
- They should consider whether the criteria under the provision have been factually met. i.e. were there circumstances of danger which the employee reasonable believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or others from that danger? Or (following Balfour Kilpatrick Ltd v Acheson) did he take appropriate steps to communicate these circumstances to his employer by appropriate means? – If these criteria are NOT met, s 100(1)(e) is NOT engaged;
- If the criteria are made out, the Tribunal should then ask whether the employer’s sole / principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal must be regarded as unfair.
The EAT also crucially commented at paragraph 27 that “the mere fact that an employer disagreed with an employee as to whether there were (for example) circumstance of danger, or whether the steps were appropriate, is irrelevant. The intention of Parliament was that an employee should be protected from dismissal if he took or proposed to take steps falling within s 100(1)(e).”
The EAT also engaged in an interesting discussion regarding their reasoning for the above which is covered from paragraph 28 onwards of the judgment.
The case was remitted back to the Employment Tribunal to decide in accordance with the guidance offered in relation to how to apply section 100(1)(e) Employment Rights Act 1996.
A link to the case can be found at: http://www.bailii.org/uk/cases/UKEAT/2011/0566_10_2206.html
A link to Balfour Kilpatrick Ltd v Acheson can be found at: www.employmentappeals.gov.uk/Public/Upload/EAT1412011612003.doc
When is an employer vicariously liable for an employees violent response to a lawful instruction?
The Court of Appeal considered this question in a recent judgment, which can be found here.
The Court of Appeal held that there must be a sufficient closeness between what the employee is required to do and violence towards a third party (in this case a fellow employee).
The judgment itself is well worth a read in full as it offers a comprehensive review of the authorities in respect of the vicarious liability of employers.
The appeal concerned the conjoined cases of Weddal v Barchester and Wallbank v Wallbank Fox Designs Ltd, both of which involved a violent attack on one employee, by another, in response to a lawful instruction made by the employer.
Mr WeddalMr Weddal was the deputy manager of a care home and part of his job was to arrange replacements for absent night-shift employees.
Mr Weddal telephoned Mr Marsh, a care assistant, to see if he was willing to work a night-shift. Mr Marsh was in a drunken state at the time and thought that Mr Weddal was mocking him because of this.
Mr Marsh cycled 20 minutes from his house to the care home, where he found Mr Weddal and violently attacked him.
Mr Marsh pleaded guilty in the associated Crown Court proceedings.
A County Court Judge found that Mr Marsh had acted personally, and for his own reasons and it was not, therefore, fair or just to hold the employer vicariously liable for his actions.
Mr Wallbank was the managing director of a small manufacturing company.
Mr Brown was an employee of the company, and there was evidence to suggest that there was sometimes difficulty in communicating instructions to him.
Mr Wallbank observed a gap in the manufacturing process under Mr Brown's supervision, which was resulting in a loss of fuel and instructed Mr Brown to fix the error, receiving no reply.
Owing to the lack of reply, Mr Wallbank said "come on" to Mr Brown and offered to assist, in response to which Mr Brown threw Mr Wallbank onto a table, breaking a bone in his back.
Mr Wallbank was convicted of inflicting grievous bodily harm in the associated Crown Court proceedings.
A County Court Judge found that the tortuous act and Mr Brown’s employment did not have a sufficiently close connection, therefore, Mr Brown had not been acting in the course of his employment when he assaulted Mr Wallbank and Mr Wallbank’s claim failed.
Court of Appeal Decision
Both decisions were appealed to the Court of Appeal where the following was found:
The Court of Appeal dismissed Mr Weddal’s appeal (upholding the decision of the County Court) on the grounds that Mr Marsh’s actions were unconnected to his work as a care assistant and that he was “acting personally and for his own reasons” despite arguments being advanced that Mr Marsh’s employment required him to use moderate force on residents at the care home.
It was held that the fact that the assault happened at Mr Marsh’s place of work was not determinative, with Moore-Bick LJ commenting that “the assault merely happened to occur at his place of work, but was otherwise unconnected with his employment.”
The Court of Appeal allowed Mr Wallbank’s appeal, despite the fact that any use of force was not inherent in his role (as it was in Mr Marsh’s) owing to the spontaneous nature of the force used by Mr Brown in response to Mr Wallbank’s lawful instruction.
Pill LJ commented that it was important that “Not only was the violence closely related to the employment in both time and space, it was a spontaneous and almost instantaneous, if irrational, response to an instruction,” yet stressed that “I am far from saying that every act of violence by a junior to a more senior employee, in response to an instruction at the workplace, would be an act for which the employer is vicariously liable.”
Public Law News
Editor: Adam Fellows
If you have any suggestions, please email me at: email@example.com
The Pupillage Pages will be posting regular, weekly updates regarding the latest stories of interest in public law. We will be covering cases, articles, news stories and more. Keep checking the page regularly and you can follow us on twitter @TPPpublic.
Is Parliament Sovereign?
It might seem strange to suggest that the theory of parliamentary sovereignty needs a second look. After all, every law student understands the idea. As Dicey put it, "it is a fundamental principle with English lawyers, that Parliament can do anything but make a woman a man, and a man a woman." Yet the Master of the Rolls, Lord Neuberger, felt the topic important enough to make a vigorous defence of it during the second annual Lord Alexander of Weedon lecture, delivered last week: http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf. Lord Neuberger is not the first prominent judge to raise this issue in recent years, with the late Lord Bingham’s book The Rule of Law also covering it in detail.
The issue arises due to the particular powers given to the courts to interpret legislation by the Human Rights Act 1998. While it remains the case that judges are unable to strike down statute, Lord Neuberger argues that certain judges have given themselves too much scope under the Act to read-in words and even to alter the meaning of peripheral parts of legislation. As Lord Phillips pointed out in the first Lord Alexander lecture in 2010, when discussing the decision of the House of Lords in Ghaidan v Godin-Mendoza: “The House held that the true interpretation of section 3 of the 1998 Act required, where necessary, that the courts, and indeed other public authorities, should give to provisions in subsequent statutes a meaning and effect that conflicted with the legislative intention of the Parliaments enacting those statutes.”
Lord Phillips went on to quote with some approval the comments of Laws LJ in Thoburn v Sunderland City Council: “We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes.” All of this follows on from the somewhat notorious comments of Lord Steyn, Lord Hope and Baroness Hale in 2005’s Jackson and Others v Attorney General. Lord Steyn, in comments which were obiter, gave his opinion that “the classic account given by Dicey of the doctrine of the supremacy of Parliament…can now be seen to be out of place in the modern United Kingdom.” Lord Hope, meanwhile, expressed the view that “Parliamentary sovereignty is no longer, if it ever was, absolute.”
With the Master of the Rolls disagreeing with sitting members of the Supreme Court on the issue, it seems that the doctrine of Parliamentary sovereignty is worth careful study.
Luamba vs SSHO
The fields of immigration law and public law have been increasingly intertwined over the last few years, and the recent Supreme Court decision in WL and KM vs Secretary of State for the Home Office (Judgement here) raises further interesting questions about governmental conduct on immigration matters.
The case, heard from the 15th to the 18th of November 2010, concerns the linked appeals of Walumba Lumba and Kadian Delroy Mighty against their detention pending deportation. The main issue in both appeals was the question of whether, and if so which and in what circumstances, breaches of public law are capable of rendering unlawful the detention of foreign national prisoners pending their deportation.
Specifically, from April 2006 until September 2008, the Home Office conceded that it had been operating a secret policy of favouring detention over release for foreign nationals awaiting deportation, despite its publicised policy stating exactly the opposite as being true. Lord Hope described this in his judgement as representing “a serious abuse of power”, concluding that “if the rule of law is to be sustained, the detention must be held to have been unlawful.”
As this might suggest, the majority of the nine member panel, with Lord Phillips, Lord Brown and Lord Rodget dissenting, approved the defendants’ appeals. As well as finding the unpublished policy to be contrary to the principles of public law, the majority also found that the appellants had been unlawfully detained by the state, despite the fact that they could have been (and in all probability, would have been) lawfully detained if the state had not breached public law principles. As Lord Dyson points out in his judgement, it is a principle understood and accepted by every student of law that “trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm”. However, the majority also found that the fact that the appellants would have been lawfully detained in any event did mean that only nominal damages should be awarded – in this case, £1 for each defendant.
As well as its importance in reaffirming that governmental policy must be accessible to the public rather than made in secret, and that detention under immigration powers should be limited only to the amount of time it should reasonably take to deport, this case is also of interest due to its discussion of general tort principles. A summary of the case, and the reasoning used by the 6-3 majority in reaching their judgement, can be found here.
Kettling: Legal or Illegal?
Over the last few years, the police have increasingly used a tactic in public order situations known as 'kettling' - essentially, the confinement of large groups of people without discrimination or significant selection, in order to prevent public disorder. It has proven extremely controversial, with Liberty recently commenting that "the practice of kettling is one of the most...divisive in public order policing." In their opinion, it "sweeps up the innocent with the guilty, raises the emotional temperature of everyone involved and undermines trust in the police."
The tactic received another legal airing in mid-April, in the case of R (Moos and Anor) v The Commissioner of the Police of the Metropolis (http://www.bailii.org/ew/cases/EWHC/Admin/2011/957.html). To the dismay of the Metropolitan Police, the High Court found that the use of kettling during the G20 protests of 1st April 2009 was unlawful, declaring that the use of powers granted under the Public Order Act 1986 were not justified by the situation in this case. Specifically, the Court discussed the test of "imminence", which had already been explored in Laporte v Chief Constable of Gloucestershire Constabulary (http://www.bailii.org/uk/cases/UKHL/2006/55.html), in which the decision of the police to turn back and escort coaches of protestors heading to RAF Fairford was found to be disproportionate.
The test of imminence, confusingly, is a subjective one and should not be judged, as Lord Mance pointed out in Laporte, on "absolute and purely temporal terms, according to some measure of minutes. What is imminent has to be judged in the context under consideration". In other words, do the police consider that serious disorder is imminent, and that kettling will prevent it? In Moos and Anor, the High Court was unconvinced, although the Metropolitan Police are now appealing. In contrast, in 2009's Austin v Commissioner of the Police of the Metropolis (http://www.bailii.org/uk/cases/UKHL/2009/5.html), the House of Lords found that appropriate kettling did not breach Article 5 of the European Convention of Human Rights, as it represented a temporary restriction on the right to liberty, rather than a deprivation of that right. That judgement, too, is currently being appealed.
The Metropolitan Police have made it clear that they will continue to use the tactic of kettling in order to prevent what, in their view, could be serious breaches of the peace. Meanwhile, the gates have been opened to protestors present on 1st April 2009 to sue the police for damages, and for further legal challenge against the proportionality and reasonableness of future kettles. This is an issue which is unlikely to go away any time soon.
Osama Bin Laden
Current events with a legal angle are prime fodder for questions when pupillage interviews come around. The recent assassination/execution/murder of Osama Bin Laden (the definition depending, as you will see, upon one’s point of view) is bound to feature in the minds of at least a few sets as they look for interesting topics for debate.
For those who have been living under a rock over the past month, US Special Forces finally tracked Osama Bin Laden down in Pakistan recently, and killed him. Amidst the understandable celebrations, however, a number of legal commentators were pointing out that such action rested on very dubious legal foundations.
David Allen Green, writing in the New Statesman (http://www.newstatesman.com/blogs/david-allen-green/2011/05/bin-laden-osama), commented that “on the face of it, there is no legal basis for an American President to order the killing of anyone. Furthermore, such a killing would presumably be contrary to the local law of where the killing takes place and possibly even the public law of the United States, as well as in breach of international instruments (to the extent that they have any practical legal effect).Such a killing would therefore be unlawful (in not having a legal basis for the power exercised) and illegal (in being in breach of applicable laws).”
Similarly, no less an authority than Benjamin B Ferencz, chief prosecutor at the Nuremberg Trials, has pointed out that “even Hermann Goring had the benefit of a fair trial.” In a letter to the New York Times, Ferencz stated that “the Nuremberg trials earned worldwide respect by giving Hitler’s worst henchmen a fair trial so that truth would be revealed and justice under law would prevail. Secret nonjudicial decisions based on political or military considerations undermine democracy." (http://www.buenosairesherald.com/article/66339/former-nuremberg-chief-prosecutor-'osama-should-have-had-a-fair-trial').
The EU takes a different view, however, releasing a statement that their support of the action "in no way questions the basic principles and values we have always supported ... this was not the execution of a death sentence, it was something completely different. We continue to be against the death penalty." (http://www.independent.co.uk/news/world/europe/bin-laden-death-not-an-execution-2277943.html).
Many commentators pointed out that the intent of the action was crucial – was Osama bin Laden shot because he posed a threat to the Special Forces attempting to capture him, or was he shot because the intent of the action was assassination? Reuters has reported that the latter was the reality, and that the special forces team “was under orders to kill [Osama]…not capture him.” (http://www.reuters.com/article/2011/05/02/us-binladen-kill-idUSTRE7413H220110502). Reacting to this, Australian legal academics have pointed out that “extrajudicial killing is not permitted under international or any other law…the rule of law is there for a reason – to protect everybody from the excesses of unchecked power.” (http://gpolya.newsvine.com/_news/2011/05/04/6586592-australian-law-academics-obama-order-for-osama-execution-was-illegal).
Ultimately, one’s view on this issue would seem to depend on whether one considers the rule of law and due process to be absolute, or whether they have a qualified status, capable of interpretation and differentiation when applied to purveyors of terror. As David Allen Green points out, “then, the difficult question is where one draws the line”.
BIASED LEGAL AID PROVISION CONTRARY TO PUBLIC LAW PRINCIPLES
A decision given on May 12th in the High Court – R (on the application of Evans) v The Lord Chancellor and Secretary of State for Justice - gave activist Maya Evans, as well as public interest litigants more generally, significant cause for celebration. In short, the court found that it was against the principles of public law for cuts in legal aid to be based upon the fact that it would make challenges against governmental decisions more difficult.
The judgement was the result of a judicial review, brought against amendments in the Legal Services Commission Funding Code which were made in April 2010. These amendments, in essence, abolished legal aid for all public interest challenges except in the field of environmental law – protected due to the UK being a signatory to the Aarhus Convention. The Applicant brought a claim for judicial review on three grounds. Firstly, that the amendments were made on grounds which were not legally material, and that documents existed which showed the true basis for the decision which had not been made public. Secondly, that the amendments were ultra vires, and thirdly, that it was irrational for there to exist an exemption for environmental cases but no others.
The second and third grounds were rejected by Lord Justice Laws and Mr Justice Stadlen, but the first and most significant ground for review was accepted. It centred around a letter written by Bob Ainsworth MP in 2008, when he was Minister of State for the Armed Forces, to Lord Bach, then Under Secretary of State at the Ministry of Justice. In it, Ainsworth pointed out that in many public interest cases, “the consequences of an adverse judgement could be extremely serious for our defence, security and foreign policy interests”. He then went on to state that “this decision [which prompted the letter] leads me to wonder whether the time is right for a look at the rules under which [the LSC] makes its decisions in judicial review cases.”
Lord Justice Laws was in no doubt as to what this meant. In his judgement, he stated that: “in plain language [the letter of November 2008] seems to me to assert that the consequences of an adverse result in such a public interest judicial review is a good reason for the denial of public funding to bring the case. It needs no authority to conclude that by law such a position is not open to government. For the State to inhibit litigation by the denial of legal aid because the court’s judgment might be unwelcome or apparently damaging would constitute an attempt to influence the incidence of judicial decisions in the interests of government. It would therefore be frankly inimical to the rule of law.”
For this reason – which regular readers will recognise as similar to the judgement in the already discussed Luamba v SSHO – the position of public interest claimants has been strengthened by the High Court.
Access to Environmental Justice
On 6 April 2011, the European Commission announced that it is referring the UK to the European Court of Justice, for failure to provide adequate access to justice in environmental cases under the Aarhus Convention.
As we saw in the previous article on public interest legal aid, environmental cases are already provided some element of protection under the Aarhus Convention (http://www.unece.org/env/pp/) – or, to give the full and rather less snappy title – the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. The European Commission takes the view, however, that not enough has been done for the UK to meet its treaty obligations.
Adopted in 1998 in the Danish City of Aarhus, the Convention obligates signatory nations to provide access to environmental justice. Specifically, Article 9 (4) of the Convention requires that environmental challenges should be ‘fair, equitable, timely, and not prohibitively expensive.’ The European Commission, after a number of years of warnings, has now charged that UK citizens are required to face prohibitively high costs when bringing challenges against environmental decisions in the UK courts. The main reason for this view is the normal domestic rule that costs follow event. In other words, the loser pays the winner’s legal costs, in addition to their own.
The UK’s costs regime has already been declared incompatible with its international obligations – in a case brought by environmental law organisation ClientEarth against the UK, the UN’s Aarhus Compliance Committee ruled in October 2010 that the UK was in breach of the Convention. As a result of this, the UK considered ‘qualified one way cost shifting’ as part of its wider review of civil costs – this would have meant that losing claimants may only need to pay their own legal costs, subject to conditions. However, on the publication of the review, only a few rule changes on Protective Cost Orders were proposed – changes which the environmental sector (and, it seems, the European Commission) consider inadequate to address the Aarhus issue. Debbie Tripley, the chief executive of the Environmental Law Foundation, recently commented that “environmental justice is too expensive in this country. More than a third of our clients cite cost as a barrier to bringing a case to a successful conclusion.”
Of course, the wheels of European justice grind notoriously slow – but it may be that the threat of multi-million dollar fines cause this Government – or future ones – to think again on costs for environmental review cases.
Religious Freedom For Prisoners
A recent judgement by HHJ Pelling QC, sitting as a judge of the High Court, has provided support to those seeking to argue against prison regulations on the grounds of religious obligation – specifically, those doing so under Article 9 of the European Convention on Human Rights.
In his judgement on Bashir, R v the Independent Adjudicator (http://www.bailii.org/ew/cases/EWHC/Admin/2011/1108.html) , HHJ Pelling finds that actions taken because of religious belief are protected under Article 9, even if they are not obligatory and have been undertaken on a voluntary basis. Mr Bashir, a Muslim prisoner, was undergoing a voluntary fast when he was chosen for a mandatory drug test. Not surprisingly, not having drunk water for some time, he was unable to comply, and refused offers of water due to his religious views. He was therefore sentence to another 14 days of imprisonment for breaking prison regulations and refusing to comply with a legal order.
His claim for judicial review of this decision rested on three grounds; firstly, that his conviction was wrong in law on the evidence available, secondly, that the finding of guilt was perverse and thirdly, that requiring him to provide a sample when he was fasting for religious reasons was contrary to Article 9.
HHJ Pelling dismissed the first two grounds of Mr Bashir’s claim, but allowed the third, finding that the adjudicator had not even considered the claimant’s Article 9 rights, and that this led to a clear breach. The fact that prison regulations allow for dispensation for ‘official’ religious practices such as Ramadan, but not for voluntary fasts, is neither here nor there – the existence of religious faith is enough to engage Article 9 rights and obligates a public body to at least consider them in making a decision. This case is certainly a warning to public bodies that ignoring the European Convention on Human Rights when making decisions to do with religious faith is unwise, and could well lead to successful judicial review.
Cornrows and School Uniform
The most prominent case involving aspects of human rights law in the past week was G v St Gregory’s Catholic Science College, heard in the High Court. As you may have read in various newspapers, it concerned the right of a student to wear his hair in a style he chose (in this case, cornrows), despite contrary school rules and regulations.
In fact, the main challenge to the school’s uniform code was not brought under the European Convention on Human Rights, but rather relied on race and sex discrimination law – specifically, Section 71 of the Race Relations Act 1976, and Section 76A of the Sex Discrimination Act 1975. Some of the judgement also concerned Section 149 of the new Equality Act 2010 (the public sector equality duty).
Lawyers acting on behalf of the school argued that cornrows were banned because of their association with gang culture, and that the test under law should be that for the claim to succeed, G would need to prove that the hairstyle had “exceptional importance” to him. Mr Justice Collins disagreed, setting the test as whether there had been “particular disadvantage”. Given that the court was satisfied that cornrows were indeed part of G’s ethnic heritage, it was found that he had been indirectly racially discriminated against.
G’s claim for sex discrimination, on the basis that female students were allowed to wear cornrows while he was not, failed. The court found that the school’s rationale that cornrows were a sensible method of keeping long hair (permitted for female students in their policy) under control was an acceptable rationale.
Perhaps the most interesting consequence of this judgement is an apparent change in the threshold for race discrimination claims in such cases. Previously, as established in 2008’s R (Watkins-Singh) v Aberdare High School, the threshold had indeed been that the transgression of the uniform code had to be of “exceptional importance” to the student. With a new threshold apparently in place, more claims against uniform codes could see the light of day soon enough.
Court of Protection and Deprivation of Liberty
To the Court of Protection this week, for a recent case clarifying the use of deprivation of liberty authorisations on people without full mental capacity or legal responsibility. Specifically, London Borough of Hillingdon v Steven Neary(http://www.bailii.org/ew/cases/EWHC/COP/2011/1377.html).
Steven, who is 21, has severe autism and learning difficulties. In 2009, he was being looked after by his father, and during a particularly tough patch of caring it was agreed that Steven would go into a support unit to give his father a few days of rest. The problem arose because, after those few days had elapsed, the care unit refused to return Steven to his father. Instead, they kept him for four months for assessment, despite his father’s objections, and then issued a ‘deprivation of liberty’ order to keep him for even longer.
After a few more months, it became apparent that social services were not intending to return Steven to his father, and repeated requests and complaints were ignored. Finally, after almost a year away from his father, Steven was returned after the deprivation of liberty order was overturned by Mr Justice Mostyn in December 2010.
Mr Justice Jackson found that Steven had undoubtedly been deprived of his liberty in the first four months, during which there was no legal basis for holding him. Jackson J pointed out that this contravened a principle of common law far older than the Human Rights Act – namely, Magna Carta, which holds that “no freeman shall be taken or imprisoned….but by lawful judgement.” He went on to find that the ‘deprivation of liberty’ orders were flawed, and that even if they had not been, the behaviour of LB Hillingdon amounted to a further term of unjust imprisonment.
Jackson J found that the deprivation of liberty orders were flawed due not only to improper assessment, which infringed upon Steven’s Article 5(1) right not to be unlawfully detained, but also that they were unjustly delayed, leading to an infringement of his Article 5(4) right to a speedy review of his case. He further found that LB Hillingdon had breached Steven’s Article 8 right to family life, by ignoring the wishes of his father and not taking into account the impact of its actions upon Steven’s family.
More generally, Mr Justice Jackson warned other local authorities that deprivation of liberty orders must not be used to justify arbitrary detention without proven due cause – and that to do so, particularly against the wishes of family, would open them up to court proceedings.
ECHR International Scope
The Grand Chamber of the European Court of Human Rights gave two vitally important judgements last week, in the cases of Al-Skeini v United Kingdom and Al-Jedda v United Kingdom. In both cases, they found – contrary to the judgements of the House of Lords – that the European Convention on Human Rights does apply to occupying military forces in certain contexts, and that these contexts existed in Iraq from at least 2003 until 2007.
In Al-Skeini, the case was brought against the UK after the applicant lost six close relatives after various British military operations between 2003 and 2007. One of these, Baha Mousa, was not considered in the judgement as a public inquiry into his death is due to report in September 2011. However, the applicant argued that all of the other relatives had been denied access to their human rights due to the lack of independent inquiries into their deaths. British courts, up to and including the House of Lords, had found that the Human Rights Act did not apply on foreign soil, and that therefore there was no obligation for it to be followed by troops in Basra. Similarly, in Al-Jedda, the applicant’s argument that his human rights had been breached by years of internment in Basra had been dismissed by the House of Lords.
In two far-reaching judgements, the European Court of Human Rights overturned the judgements of the House of Lords in these cases. The Grand Chamber argued that, given the overthrow of the Ba’ath regime and the responsibility of British forces for the area around Basra during the period in question, “exceptional circumstances” had arisen under which the UK had some of the public powers of a sovereign government, and therefore also had responsibilities under public law for the Iraqis in its area of control. Namely, the Human Rights Act could be applied, given the executive functions of the UK military in that area, and at that time. For that reason, the Grand Chamber found that five of Al-Skeini’s relatives had been deprived of their Article 2 right to life by the failure to undertake independent inquiries (and awarded costs), and that Al-Jedda had been deprived of his Article 5(1) right to liberty due to his continued internment without review.
Clearly, these judgements overturns years of findings by the House of Lords, and potentially expands the scope of the Human Rights Act significantly, particularly in times of war. The Ministry of Defence will have to take these judgements into account in future – which, depending upon one’s point of view, will either improve or hamper its ability to function effectively.
Undercover Police and Collapsing Trials
Those who were following the news at the beginning of 2011 may recall that the radical end of the environmental movement had been infiltrated by undercover police, at least one of whom went on to regret his actions once discovered. The actions of this policeman, Mark Kennedy (known as Mark Stone to the protestors), have already led to the collapse of one criminal trial. This week, in Barkshire and others v Regina, the Court of Appeal quashed the convictions of those protestors who were convicted at an earlier trial, during which the existence and evidence of PC Kennedy were kept from the defence.
The decision of the Court of Appeal in this case is neither unexpected nor controversial, as the absence of any mention of PC Kennedy’s activities (which went far beyond mere observation and into the realm of an agent provocateur) clearly rendered the trial unsafe. However, the continued criticism of the CPS has led to an enquiry led by Sir Christopher Rose, and this could lead to serious consequences for the way in which trials involving political protest are handled in the future.
The Court of Appeal, in obiter, also chose to question the pre-trial judge’s decision to allow the protestors to pursue a defence of ‘preventing a greater harm’ during the original hearing. As their judgement stated; “we entertain reservations about it [the defence]. The circumstances in which what would otherwise amount to criminal conduct may be justified on the basis of the honestly held, political beliefs of the perpetrators, will need reconsideration in this court on another occasion.”
They pointed to the precedent of R v Jones (Margaret) in which the House of Lords explicitly argued that such defences were problematic, stating – in the words of Lord Hoffman – that: “In a case in which the defence requires that the acts of the defendant should in all the circumstances have been reasonable, his acts must be considered in the context of a functioning state in which legal disputes can be peacefully submitted to the courts and disputes over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury.”
No doubt both issues will continue to be of interest to practitioners of public order law for many years to come.
The Media and Contempt of Court
Perhaps the most interesting case being heard in the High Court this week touched on two conflicting issues of human rights – Article 6 of the ECHR (the right to a fair hearing) and Article 10 of the same convention, the right to freedom of expression. In HM Attorney-General v MGN Ltd & Anor, proceedings were brought against The Sun and Daily Mirror newspapers under the Contempt of Court Act 1981, in respect of articles they had run during the investigation into the murder of Jo Yeates.
Specifically, the proceedings were brought as a result of the lurid allegations made against Jo Yeates’ landlord, Christopher Jeffries. In his judgement, the Lord Chief Justice described the articles as asserting, “ in effect directly, that his standard of behaviour, so far as sexual matters were concerned was unacceptable, and he was linked to both…paedophile offences and the much earlier murder offence.” In the event, Christopher Jeffries was cleared entirely of any involvement, but his reputation was harmed, and any chance of a fair trial had he been guilty was impaired.
The Court specifically addressed the Article 10 rights of the newspapers to free expression, and considered that the Contempt of Court Act 1981 is designed to ensure the protection of another right, Article 6. The Lord Chief Justice found that any interference with Article 10 rights was justified, given that any conviction under the Act “depends on proof to the criminal standard that the publications in question have created a substantial risk of serious impediment or prejudice to the course of justice. This falls comfortably within the limitations acknowledged in the Convention itself.”
Finding both publishers guilty, the Court fined the Daily Mirror £50,000 and The Sun £18,000. While this was welcomed by the Attorney General and by Mr Jeffries’ lawyers, the question remains whether such sums are adequate to dissuade major national newspapers from running stories which, while in contempt of court, undoubtedly boost their circulation figures significantly. While the Attorney-General continues to be activist in bringing prosecutions against such articles, the penalties may simply not be enough to have an effect.
Prisoner Voting and Implementation
The Coalition Government has been waiting some time to hear what, if anything, will need to be done about prisoner voting following the unfavourable decision in Hirst v the United Kingdom (No 2)  ECHR 681. Although the-then Government accepted it would implement the judgment, the advent of proceedings based upon an Italian matter gave the United Kingdom some breathing space. The decision has now been made and judgment handed down: in Scoppola v Italy (No 3)  ECHR 868, it was held that the automatic disenfranchisement of all prisoners is contrary to their human rights, but states do have a wide discretion under Article 3 of Protocol 1 to the Convention as to how to enact such a ban if it is not automatic following conviction and imprisonment. So while the UK government will need to allow prisoners to vote by late November this year, it may be able to do as little as possible to prevent further cases.
One question that may therefore arise in interviews is how the United Kingdom should implement these judgments. There are several options to consider:
- as Carl Gardner notes in his excellent blog post on the matter, three years could be an acceptable cut-off point following the Hirst (No 2) judgment;
- although going against the grain of the points in Hirst (No 2), another way of doing so more acceptable to the Parliamentarians may be to limit the prisoner voting ban to those sentenced in the Crown Court, as 97% of all criminal cases are heard and dealt with in the Magistrates’ Court system, but would still reserve the ban for more serious offenders; or
- very unlikely though in touch with quite a large section of the population, there is always the argument that the United Kingdom need do nothing as it is an affront to the sovereignty of our Parliament.
As noted above, the last option is very unlikely, but should not be forgotten. Any issue of human rights in Europe is a complex web of the legal and the political, and the House of Commons vote on the issue in February 2011 showed which side our elected politicians come down on. The political wrangling will continue for some time.
Some other resources that may assist your reading include the press summary released by the ECtHR on Scoppola (No 3), and the United Kingdom Human Rights Blog posts.
Human Rights and Data Retention
It’s seems that the United Kingdom cannot get the law right on its crime information databases. Following S and Marper v United Kingdom  ECHR 1581 it was held that the retention of DNA of suspects who were subsequently acquitted or had their charges dropped was an invasion of their privacy, and lifelong inclusion on the sex offenders’ database without review was held to be unlawful by the Supreme Court in R (JF (by his litigation friend OF)) & Anor v SSHD  UKSC 17. However, it seems that at least one database has been given a reprieve, that relating to extremists.
Although heard in February 2012, the judgment in Catt v The Commissioner of Police of the Metropolis  EWHC 1471 (Admin) was handed down on 30 May 2012 and fell in favour of the defendant. In this matter, the claimant Mr Catt was a political protestor of many years’ activity (he is 87 years old) whose details were entered onto the extremist catalogue following a protest march in Brighton in January 2008. Mr Catt had sought an order for removal of his data from the database because he had not been “engaged in any criminality”, and so retention of his data on the database was either a breach of Article 8 of the ECHR or the Data Protection Act 1998.
On the Article 8 point, there was a question as to whether Mr Catt’s right had been breached. It was submitted that he wanted to make his views known, but that the police had no right or reason to build up an entry on him in the National Domestic Extremism Database, following R (Wood) v the Commissioner of Police of the Metropolis  EWCA Civ 414. However, for Commissioner it was submitted that the retention of data was not serious enough to reach the threshold of breach; Catt’s activities were done in public as part of a protest, and the title of the database should not mislead as to the more general contents of action taken by protestors. For the court, Laws LJ’s judgment in Wood held the key that the police’s action must be taken as a whole, and a question as to what the public would expect. As such, Mr Catt’s privacy was not breached by his database profile.
The DPA issue was decided on similar grounds, and will be looked at in the next piece.
Data Protection and Data Retention
The previous summary for the Public Law News section related to a data protection and human rights case, Catt v Commissioner for Police for the Metropolis  EWHC 1471 (Admin). This summary will look at the same case, but from the data protection angle rather than the human rights point like last time.
The data protection claim in the hearing is very simple: the retention of the data did not comply with the requirements of the Data Protection Act 1998 ("the DPA"). The Commissioner was agreed by all parties to be the relevant data processor under s 1 DPA, in that he was responsible for the units that dealt with the data. However, the judgment is for the most part silent on matters relating to data protection, even though it formed half of Mr Catt’s claim. This is for the following reasons:
As Gross LJ noted, the only way for a claim to be brought under the DPA was to find that Article 8 of the ECHR was not engaged.
- if the claim had been heard and Article 8 of the ECHR had been engaged, but that a breach was justified under Article 8(2) (interference in accordance with the law and is necessary in a democratic society), then the claim under data protection rules would fail; or
- if the claim succeeded under both Article 8(1) and 8(2), and that the breach could not be justified for the reasons above, then the claim did not require any action under the DPA.
There is an interesting point to note about this aspect of the judgment. Much has already been made about the provisions for secret justice in civil cases in legal blogs, such as this post at the UK Human Rights Blog, but there are instances where closed material in civil cases already exists; the Tudway statement referred to in this judgment is a statement given by Adrian Tudway of NPOIU as to the existence of material held on the database relating to Mr Catt that can be protected by the broad exemption under s 29 DPA relating to crime and taxation. Considering Mr Catt is acknowledged to be a man of good character, the retention of his data on the database seems to support a wide interpretation of both the DPA and the database’s role, which also follows the Article 8 judgment discussed previously.
The Home Office and Article 8
From the same people who brought you last year’s hilarity over #Catgate (the claim that an individual was allowed to stay in this country because he had a pet cat), we have more fun and games on Article 8, the right to a private and family life. Except that this time, the consequences are much less amusing.
Immigration is always a popular subject when it comes to politics, and this time Theresa May has decided that the judges need to stop being so lenient on all these people being allowed to stay in the country:
Understandably, a throng of legal voices piped up to remind Ms May of a couple of things, namely that Article 8 is not an absolute right, and the judges are already aware of it. Indeed, as many law students on Twitter pointed out, everyone with a basic understanding of the law knows that. An excellent-as-ever post from UKHRB sets out a clear analysis of what the released plans mean.
- first, she plans to submit a motion in the House of Commons to have a formal statement sent to the judges telling them that the right to a family life is not absolute and deportation of foreign criminals should be made a priority; and
- second, she is planning an overhaul of the immigration rules as they stand to make it harder for relatives of an UK national to come over here if the UK national earns under £18,600.
The next assault on Article 8 will, if the Bill goes through, affect us all. The draft Communications Data Bill was released this week, and has been greeted with a grasp of horror. This Bill will allow the police to keep track of our general and e-communications without the need for a warrant, as is currently required. Included in the draft publication is an ECHR memorandum which states that Article 8 will not be breached due to the requirements for ‘necessity, proportionality and legitimate aim’ will need to be met, but as shown from the Catt judgment discussed earlier, these requirements can be placed in a very broad context.
There is another aspect to these developments: they show just how interconnected politics and public law is, and how great the impact on society can be. If these topics arise in pupillage interviews, it is always worth remembering that new legislation and rules are not just to fix a problem, but also to win votes or further policy aims.
Earlier this year, a judgment on prisoner voting rights in Italy has forced the Government here to work towards implementing prisoner voting in this country. As expected, there was an outcry about “unelected European judges” telling our politicians what to do. However, prisoner rights cases don’t always go against the Government. In R (on the application of) S and KF v The Secretary of State for Justice  EWHC 1810 (Admin), it was held that the Secretary of State for Justice was right in implementing new prison service instructions relating to the docking of wages of prisoners under the Prisoner Earnings Act 1996 for the Victim Support service. In particular, where a prisoner undertakes enhanced wages work for a private employer, the excess of their wages above £20 a week may be subject to a deduction by the prison governor of up to 40%.
These cases were brought late but allowed to be joined to others to form a series of test cases on the matter. The claimants’ case was brought under Article 1 of Protocol 1 to the European Convention on Human Rights (protection of property), and the main point is that the requirement in the two sets of instructions only permitted a narrow class of exemption in “exceptional” or “very exceptional” circumstances, and were therefore far too intrusive an interference with prisoners’ rights under A1P1. In order to be lawful, the instructions should allow prison governors a much greater discretion to respond to the individual circumstances and needs of prisoners.
The two prisoners in this case believed that the levy was (in the case of S) and could (if she worked, in the case of KF) preventing them from supporting themselves and crucially their families outside of prison, and that not working was more beneficial. KF also argued a disproportionate effect on female prisoners. However, Sales J disagreed: commenting on the claimants’ submission that the margin of appreciation discussed by Laws LJ in SRM Global Fund LLP v Commissioners of HM Treasury  EWCA 788, he disagreed that it was to apply only to full legislation, and that a wide margin of appreciation was to apply, and further stated that A1P1 would only be breached if the guidance was worded in such a way to lead prisoner governors to manifestly unreasonable decisions. Furthermore, as the scheme for deduction is separate to the sentencing, forming part of the prison system not the law, then Article 7(1) ECHR was not breached. Finally on KF’s discrimination point, Article 14 was not breached as there was is no difference between men and women under the policy, no proof that there would be a significant impact on women, and that the duty under s 149 Equality Act 2010 to have due regard to equality was met.
This is a long case and worth a read; it not only sets out in excellent detail the law and analysis thereof, but as with many other posts here it shows the judiciary refraining from interfering with policy decisions and is essentially our constitution in action.
To Believe or Not to Believe
The question of immigration has been one that has taken up considerable time in both the press and the courts. In earlier articles, there has been discussion about the Article 8 implications of the Home Secretary’s alterations to the Immigration Rules, but this was closely followed by the UKSC decision that attempting to change the rules in a back door way by altering guidance was not permissible in Alvi  UKSC 33. Hot on the heels of that judgment comes another which deals with the difficult question of political refugees who leave their country due to refusing to support outwardly a government regime they abhor.
In RT (Zimbabwe) & Ors v Secretary of State for the Home Department  UKSC 38, the question was asked whether an individual subject to a persecutory regime in his home country should be required to feign loyalty in order to escape ill-treatment or worse, and should therefore remain in his own country? The answer that came back from a seven justice bench was a resounding “no”.
In country guidance concerning Zimbabwe that was brought to the attention of the AIT in RN (Returnees) Zimbabwe CG  UKAIT 00083, it is stated that “those at risk are not simply those who are seen to be supporters of the MDC but anyone who cannot demonstrate positive support for Zanu-PF or alignment with the regime”. In this case, all those wishing to oppose their deportation were those born in Zimbabwe and had arrived in this country and claimed asylum. The common thread for the purposes of this judgment that ran across all of them was that they were not politically aligned to any group back in Zimbabwe, and therefore the authorities believed that all they would be required to do was to make false declarations of support to protect themselves.
The UKSC looked at whether the principle under HJ (Iran) v Secretary of State for the Home Department  1 AC 596, in which a gay man was entitled to live openly in line with his sexual orientation under the Refugee Convention, could be applied to those with no political belief. The court held it could, as (at paragraph 32 of the judgment) “the right to freedom of thought, opinion and expression protects non-believers as well as believers and extends to the freedom not to hold and not to have to express opinions” in line with Buscarini and others v San Marino (1999) 30 EHRR 208 and other judgments. As Lord Dyson put it in paragraph 43, “it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs. This is as important as the freedom to hold and (within certain defined limits) to express such beliefs as they do hold. One of the hallmarks of totalitarian regimes is their insistence on controlling people's thoughts as well as their behaviour”.
This case should come as a constant reminder to us all that one of the bastions of our democracy is the right to disagree, but a further reminder that we are also entitled to have no opinion on a matter. The old mantra of “if you are not for us, then you’re against us” can now be consigned to the annals of history.
General Civil Law News
Editor: Matthew McGhee
If you have any suggestions, please email me at: firstname.lastname@example.org
The Pupillage Pages will be posting regular, weekly updates regarding the latest stories of interest in general civil law area. We will be covering cases, articles, news stories and more. Keep checking the page regularly and you can follow us on twitter @TPPgeneralcivil.
Expert Witnesses Lose Immunity
At the end of March the Supreme Court abolished the immunity of expert witnesses from civil actions relating to the evidence they give in court.
Lord Phillips delivered the leading judgement in Jones v Kaney  UKSC 13, in which the appeal of Jones, a motorcycle accident victim suffering from post-traumatic stress disorder, who wished to sue the expert witness Kaney, was allowed. Kaney had originally been instructed by Jones but, after a telephone conversation with him, signed a joint statement with the other side's expert. The claim settled for less than it would have done had she not switched sides and Jones launched a professional negligence claim.
The expert witness immunity rule has traditionally been justified by reference to the public interest in expert witnesses giving truthful and fair evidence in court, without fear of being sued by a party whose case is lost (Stanton v Callaghan  QB 75).
Lord Phillips was not convinced by this argument, noting that anyone providing professional services was at risk of being sued for breach of their professional duty and that the abolition of barristers' immunity from suit had not, in his experience, resulted in them being inhibited from performing their duty to the court.
He concluded that "it would be quite wrong to perpetuate the immunity of expert witnesses out of mere conjecture that they will be reluctant to perform their duty to the court if they are not immune from suit for breach of duty."He considered that the possibility of being sued for negligence would not dissuade expert witnesses, since “negligence is not easy to prove against an expert witness, especially in relation to what he or she says in the heat of battle in court.”
Lords Brown, Collins, Kerr and Dyson agreed.
Lord Hope and Lady Hale dissented. Lord Hope said any reform of the law should be dealt with by parliament, believing that there was a “lack of a secure principled basis for removing the immunity from expert witnesses”. He was particularly concerned at the impact of the end of immunity on criminal and family cases, believing that some expert witnesses would be reluctant to act, for fear of “the distress of harassing litigation”.
Lady Hale added that it would be “irresponsible to make such a change on an experimental basis”.
Expert witnesses will continue to be protected from libel actions by absolute privilege and all other witnesses retain their general immunity.
An interesting take on the practical consequences of the decision on the Pinsent Masons construction blog: http://construction.practicallaw.com/blog/construction/pinsents/?p=124
Guy Mansfield QC (of 1 Crown Office Row) provides an analysis of the decision and its limits here: http://ukhumanrightsblog.com/2011/04/05/expert-immunity-ruling-analysis-by-guy-mansfield-qc/?preview=true&preview_id=7749&preview_nonce=6f7ff259f3
Facebook and Fraudulent Personal Injury Claims
The case of Locke v Stuart and AXA  EWHC 399 (QB) concerned a claim for £1,500 personal injury damages following a road traffic accident. The claimant, Locke, said that he was a passenger in a car hit by the first defendant, Stuart, who neither entered a defence nor appeared at the trial. The second defendant, AXA, Stuart’s insurers, alleged fraud, saying that Locke and Stuart had contrived the accident.
Sitting in the High Court in Liverpool, Andrew Edis QC dismissed the claim. The judgement raises a number of interesting evidential issues relating to fraudulent claims.Facebook Evidence
Three entire bundles consisted of print-outs from the social networking site Facebook. AXA relied on this evidence to prove links between the claimant, first defendant and other parties involved in a series of nine linked accidents in the Wirral area, which were intended to be tried at the same time (the other eight did not end up proceeding to trial). Counsel for the claimant submitted that this was inadmissible as evidence of fact, being collateral evidence which could go to credit only.
This argument was rejected, the judge finding that, on the facts of this case, the existence of the links between the parties on Facebook lent support to the defendant’s case that the claimant gave false evidence to enhance his own claim and that there was a conspiracy to manufacture accidents for financial gain. That the parties were friends on Facebook was capable of going to the central issue: the motivation of the claims made.
In Solicitors Journal, John Spencer has suggested that motivation will be an issue whenever allegations of fraud are made and therefore the court is likely to allow such ‘Facebook’ evidence as evidence of fact, not merely evidence going to witness credibility (S.J. 2011, 155(14) Supp (Personal Injury Focus April 2011), 11-12). Without such evidence, it is unlikely thatthe judge would have been able to make a finding of fraud in this case.
Burden and Standard of Proof
When dishonesty is pleaded, the burden is on the party alleging the dishonesty to prove it. Reminding himself of the decision of the Court of Appeal in R (N) v Mental Health Review Tribunal (Northern Region) and others  QB 468 and the authorities cited in Markel International Insurance Company Limited v Higgins  EWCA Civ 790, the judge’s approach was that since the allegations made by AXA were serious, “strong and cogent evidence is required to prove them on the balance of probabilities”. He noted that inconsistency of evidence will not, in itself, prove fraud. The threshold is that it must be safe to say that there can be no other reasonable explanation for the inconsistency other than fraud.
Guidance on Volume of Evidence
With almost 3,000 pages of written material, it is unsurprising that the judge concluded that “far too much documentation has been placed before the court”. He made a number of observations “in the hope that [they] may assist the case management and preparation of any similar cases which may arise. These are summarised excellently in PiBlawg, PiCalculator and 1 Chancery Lane’s personal injury blog (http://www.piblawg.co.uk/post/2011/03/09/When-friends-are-more-than-just-electric.aspx), as follows:
“Agreement should be reached as to the inferences that in principle can and cannot be drawn from the sort of information that appears on Facebook pages . A document (capable of wider use in similar cases) should be prepared.
“Further, a document akin to a Scott schedule should show which facts and inferences relating to the evidence are agreed and which are not, this allowing only the necessary material to be placed before the Court….This statement should include proper concessions as to the limits of the evidence where appropriate to do so.”
This decision provides an excellent demonstration of what is required to identify and prove a fraudulently staged accident and valuable practical guidance on including social networking evidence in a trial involving such a claim.Full judgement here http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2011/399.html&query=title+(+locke+and+stuart+)&method=boolean
A Primer on the Civil Litigation Reforms
Any applicant for pupillage would do well to have an informed opinion the proposed reforms to costs in civil litigation. The links and sources below should assist in the creation of such an opinion.
Where it all started
Due to concerns over disproportionate costs, Lord Justice (Rupert) Jackson was commissioned to write a report in 2008 on civil litigation funding. He published an interim report in late 2009 and the final version in January 2010.
A summary of the report’s history and findings:
For quick readers and those with plenty of time, Lord Justice Jackson’s Review of Civil Litigation Costs: Final Report.http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/jackson-final-report-140110.pdf
Reaction at the time:
What happened then?
There was a General Election. Last autumn the new Government announced a consultation on the proposed reforms. Here is an summary from the excellent Inforrm blog (essential reading for anyone interested in privacy and defamation law):http://inforrm.wordpress.com/2011/02/15/ministry-of-justice-civil-litigation-funding-consultation-some-responses/
What’s happening now?
At the end of March Kenneth Clarke QC, the Justice Secretary, announced the intention to implement the Jackson reforms: http://www.lawgazette.co.uk/news/government-announces-implementation-jackson-s-reforms (the comments provide some interesting and trenchant perspectives on the reforms)
This research note from the House of Commons Library provides some useful background: http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-05844.pdfAs does this e-bulletin from Herbert Smith: http://www.herbertsmith.com/NR/rdonlyres/5895692D-AC58-4E60-BA1B-0770A6B86769/0/GovernmentannouncesimportantcivillitigationreformsMarch2011.htm
What do people think?
The medical insurers’ perspective: http://www.medicalprotection.org/uk/press-releases/Reforms-will-help-address-unsustainable-and-excessive-legal-costs-in-clinical-negligence-cases
According to Legal Futures and Irwin Mitchell, the public are against the reforms: http://www.legalfutures.co.uk/news/strong-public-opposition-to-jackson-reforms-poll-revealsandThis well-written polemic highlights concerns about access to justice: http://www.lawgazette.co.uk/opinion/letters/the-court-system-isn-t-everyone
Prolific blogger Charon QC has a number of concerns:
ETK v News Group Newspapers Ltd (2011)
This Court of Appeal decision clearly acknowledges the importance of the best interests of any children concerned when determining whether an interim injunction restraining publication of private information should be granted. It also raises an interesting point on the terms of the reporting restrictions of privacy orders.
A Super Injunction?
The interest shown by the public and all sections of the news media in what are persistently and incorrectly referred to as ‘super-injunctions’ shows no sign of abating. Strictly speaking, a super-injunction’ is an injunction which, due to the confidentiality of the subject matter, includes a reporting restriction preventing the very fact of the injunction’s existence being published. For example, in DFT v TFD  EWHC 2335, an application for an order such as this considered and rejected by Mrs Justice Sharp (http://www.bailii.org/ew/cases/EWHC/QB/2010/2335.html).The present case was an appeal against the dismissal of an application for an injunction restraining publication of a proposed article, but not of the fact of the injunction itself.
In this case, a married man working in the entertainment industry (“ETK”) began a sexual relationship with a colleague (“X”). Both ETK’s co-workers and his wife found out about the relationship, which subsequently ended. X’s employment was then brought to an end. The Respondent, a newspaper, became aware of these facts and wished to publish an article, the substance of which was the affair being the reason for X leaving her employment.
Collins J refused ETK’s application for an injunction restraining publication, holding that although ETK’s article 8 rights were engaged, there was public interest in the effect of his sexual behaviour, and that this tipped the balance in favour of the Respondent’s article 10 rights.
Children’s Privacy Rights
Ward LJ, giving the judgement of the court, stated that the principles to be applied were well established. The decisive factor when conducting what he called “the ultimate balancing test”, between the article 8 right to respect for private and family life and the article 10 right to freedom of expression, was the contribution that any publication made to “a debate of general interest”. However, the judge at first instance had erred when he said that the effect of adverse publicity on the children of either of the parties was not something that could tip the balance towards protection of article 8 rights.
Publication of the proposed article would mean ETK’s children were “bound to be harmed by immediate publicity”, through “the ordeal of playground ridicule”. Ward LJ considered that this would have an effect on ETK’s family life, adopting Lady Hale’s dictum in Beoku-Betts v Secretary of State for the Home Department  UKHL 39, that “the central point about family life.. is that the whole is greater than the sum of its individual parts. The right to respect for family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed.”
Furthermore, although a child’s article 8 rights could tip the balance, children’s rights are not confined to article 8. In Neulinger v Switzerland  28 BHRC 706, the ECHR considered that there was “currently a broad consensus … in support of the idea that, in all decisions concerning children, their best interests must be paramount”. This proposition is supported by various international human rights instruments and by the decision in ZH (Tanzania) v Secretary of State for the Home Department  UKSC4.
Ward LJ concludes that the ‘best interests’ of a child cannot be a factor of “limitless importance” that automatically takes precedence over the Convention rights of others. However, in cases where article 8 and article 10 rights are being balanced against each other, “particular weight” should be accorded to any children’s article 8 rights likely to be infringed by publication.
Where there is a genuine public interest in publication, it may be difficult to strike this balance. Children’s rights must not be allowed to be a “trump card”. However, the facts of the present case revealed no such genuine public interest. In a powerful indictment of the subject matter of the article, Ward LJ considers that “there is no political edge to the publication. The organisation of the economic, social and political life of the country, so crucial to democracy, is not enhanced by publication. The intellectual, artistic or personal development of members of society is not stunted by ignorance of the sexual frolics of figures known to the public.”
The reasons for X leaving her employment might interest the public, but this “public prurience” was not a sufficient reason for interfering with the rights to privacy of those involved.
It would seem that the interests of children will exert a more significant influence over the decisions in future privacy cases than hitherto.
Sex and Reporting Restrictions
Ward LJ also noted that it was not clear what consideration had been given to X’s article 8 rights at first instance. Ward LJ held that “[X] did not welcome the intrusion of the press, has made it plain to this Court that she has no intention of bringing proceedings against either her employer or the appellant … and supports the application. The evidence before the court is that X has made it clear that she did not wish her privacy to be invaded at all”.A view has emerged in some sections of the press that privacy law reveals a gender power imbalance. Gill Phillips, the Guardian’s director of editorial legal services, has argued that “granting these privacy orders, courts [are] in effect allowing men to treat women like chattels” (http://www.guardian.co.uk/media/organgrinder/2011/apr/25/celebrity-injunctions-two-tier-system-privacy). Support for this proposition comes from two recent high-profile injunctions, where anonymity was ordered only for the male, well known claimants, while the female defendants, a sex worker and a reality television show contestant, were named.
The present case demonstrates the fundamental flaw in this argument. It is only in cases where the threatened breach of confidentiality comes from one party in a sexual relationship that this party will be named. Since in any such case that party will be arguing that they wish for their article 10 right to free expression to trump the claimant’s article 8 right to privacy, it cannot be argued that they themselves have a right to privacy.
In contrast, where both parties wish to keep their private information confidential, it is likely they will succeed. This division arises from the nature of privacy rights, not from that of gender relations.
Asbestos and the Law
This article comprises a review of two landmark House of Lords decisions on mesothelioma compensation and a discussion of two interesting recent asbestos-related cases.
Students who are currently revising for tort exams will undoubtedly be familiar with asbestos. Much of the recent law on causation and employer’s liability has developed as a result of litigation arising out of the contraction of mesothelioma, an invariably fatal cancer resulting from exposure to asbestos.
The disease has two very unusual features: an extremely specific cause and a very long latency period. Most people who are exposed to asbestos live perfectly healthy lives. In an unfortunate few, the one of the fibres which works their way into the lining of the lung triggers the ultimate development of a tumour. It can be forty years after the initial exposure that the tumour develops; life expectancy from then is one to two years.
Development of the law
These twin peculiarities are what have led to asbestos cases being at the forefront of the development of the law of tort. Many claimants were exposed to asbestos in the course of their employment by a considerable number of different employers. This was the case in Fairchild v Glenhaven Funeral Services Ltd  UKHL 22. Mr Fairchild had contracted mesothelioma after working for a number of different sub-contractors for Leeds City Council. He had only suffered one injury: the contraction of the disease. An orthodox approach to causation would have meant that often, on the balance of probabilities, no employer would have been found to cause the harm. The ‘but-for’ test was therefore modified by the House of Lords. The question was ‘did the defendant materially increase the risk of harm?’ If answered in the affirmative, causation was held to be made out. The defendant employers were held to be jointly and severally liable.
This question of liability was revisited by the House of Lords in the similar case of Barker v Corus (UK) plc  UKHL 20. The difference to Fairchild was that some of the defendant employers were by now insolvent, a common problem arising out of the long latency period. The main question was whether the solvent employers should be held liable for the proportion of the damage for which the insolvent employers were responsible. It was held that they were not. Lord Hoffmann considered that “when liability is exceptionally imposed because you may have caused harm … liability should be divided according to the probability that one or other caused the harm”. This concept of proportionate liability did not find favour with the public. It was felt that it undermined the ability of those suffering from mesothelioma to be adequately compensated. In response, Parliament passed the Compensation Act 200 specifically to reverse the ruling. For asbestos cases only, employers are now, as before, jointly and severally liable.
Employers’ Liability Trigger Litigation
In October 2010 the Court of Appeal delivered judgement in Durham v BAI (Run Off) Ltd  EWCA Civ 1096, six test cases which were brought in order to determine the correct interpretation of employers’ liability policies in mesothelioma claims, jointly known as the Employers’ Liability Trigger Litigation. The insurers involved in this litigation wrote policies that referred to an injury or disease being "sustained" or contracted during the period of insurance. In around the mid-1980s, they changed their wordings to refer to injury "caused" during the policy period.
It was argued that an injury was not sustained until the tumour actually developed, which, of course, did not happen during the period the policy covered. At first instance Burton J held that in the context of these policies “sustained” and “contracted” were to be interpreted by reference to the commercial purpose of the policy and should have the same meaning as “caused” . Therefore, the insurers were liable.
The Court of Appeal, by a 2 to 1 majority, partially reversed this ruling. Rix LJ and Burnton LJ, for different reasons, held that the wording of insurance policies should be interpreted strictly. The insurers succeeded in relation to policies which referred to “injuries sustained” but not “disease contracted”. Smith LJ, dissenting, upheld Burton J’s decision.
Since this was not an entirely definite answer, leave was given to appeal to the Supreme Court and the case expedited. It will be heard this year.
Asbestos and the Caparo test
In the interesting recent case of Chandler v Cape Plc  EWHC 951 (QB), the claimant brought proceedings against the parent company of a now non-existent and uninsured asbestos manufacturer, who had exposed him to asbestos fifty years ago.
The court was required to determine whether a duty of care was owed in a mesothelioma claim
The court determined that Cape Plc had actual knowledge of Mr Chandler's working conditions and therefore the risk of his suffering asbestos disease was foreseeable. Furthermore it had employed scientific and medical officers who were responsible for the health and safety issues, not only of its own employees, but also those of its subsidiary companies to ensure they were not exposed to harm. The Caparo test was satisfied and judgement was for the claimant.
- Whether it was foreseeable to Cape Plc, the parent company, that an employee of their subsidiary would contract an asbestos-related illness
- Whether there was sufficient proximity; and
- Whether it was fair, just and reasonable for a parent company to owe a duty of care to an employee of its subsidiary company.
The Defamation Bill 2011: Missing the Opportunity for Reform
On 15th March 2011, The Government published the Defamation Bill in draft form (http://www.justice.gov.uk/downloads/consultations/draft-defamation-bill-consultation.pdf). The Bill seeks to both codify and reform existing libel law. This post will examine some of the provisions, provide links to a number of fuller, more erudite discussions, and suggest that more radical reform should be considered.
Clause 2 puts the existing common law Reynolds defence on a statutory footing (see Jameel & Ors v. Wall Street Journal Europe  UKHL 44: http://www.bailii.org/uk/cases/UKHL/2006/44.html), creating a new defence of responsible publication on a matter of public interest, setting out a number of non-exhaustive factors that the court have regard to when determining whether a defendant acted responsibly in publishing a false and defamatory statement. It does not, however, abolish the defence at common law and fails to define ‘public interest’.
Clause 3 replaces the common law defence of justification with a statutory defence of truth. This is intended to mirror the position at common law.
Clause 4 replaces the existing fair comment defence with a new statutory defence of honest opinion. This defence was recently renamed ‘honest comment’ in Spiller v Joseph  UKSC 53 (http://www.supremecourt.gov.uk/docs/UKSC_2009_0210_Judgment.pdf). The new defence of honest opinion removes the requirement that a comment explicitly or implicitly indicates, at least in general terms, the facts on which it is based. All that is required is that a fact must have existed at the time the statement was published which would have justified an honest man holding the opinion. The defendant no longer has to be aware of this fact.
Clause 1 will require claimants to prove that a statement has caused them ‘substantial harm’. The current position is that harm is presumed in libel cases, leading to miniscule damages but enormous costs awards.
Clause 5 amends the Duke of Brunswick or single publication rule, which allows for any republication of a defamatory statement to accrue a new cause of action. At the moment, any hit on a website containing a defamatory statement constitutes a new publication. This can lead to libel claims well after the expiry of the usual one-year limitation period. The change proposed will mean that defamatory material on a website can only be sued on for a year after it is first published. There will still be a separate cause of action if it is republished elsewhere.
Clause 6 extends absolute privilege to accurate and contemporaneous reporting of any court in the UK or elsewhere. It also extends qualified privilege to reports of, inter alia, scientific conferences.
Clause 7 addresses the widespread perception that the English courts have become the forum of choice for those who wish to sue for libel” and the “chilling effect” that this is supposedly having on freedom of expression “throughout the world”. A claimant would only be permitted to bring an action for defamation in the English courts if this is “clearly the most appropriate place” in which to bring such a claim.
Clause 8 removes the existing presumption in favour of jury trials in libel cases. The result will be that defamation cases will be tried without a jury unless a court orders otherwise. Since it has been almost two years since the last jury trial for defamation this proposal merely reflects the status quo
ANALYSIS AND RESPONSES
Libel reform campaigners have, in general, responded to the proposals by suggesting that they do not go far enough. There have also been a number of cogent and detailed analyses of the Bill by legal practitioners and academics. Links to some of these can be found below.
An unfortunate characteristic that the libel reform debate shares with the current fuss over privacy laws is that the reporting by the media reflects their status as interested parties, rather than disinterested observers. In my view, this has led to a focus on certain aspects of libel law that are amongst the least in need of reform.
Fair Comment?The case of British Chiropractic Association v Singh  EWHC 1101 (QB) attracted an inordinate degree of attention. Whereas there is no doubt that the end result of the case was just, Mr Singh proved himself adept at harnessing the resulting media frenzy in order to mount a successful defence. This resulted in a misrepresentation of the meaning of the decision. It was an error of law at first instance corrected by the Court of Appeal, who commented that the common law name of the ‘fair comment’ defence was a little misleading, and that it would perhaps be better known as ‘honest comment’. This is an example of the development of the common law. It was not, as commonly misreported, a demonstration of the need for libel reform.
The political pressure appears to have produced a proposal for a statutory defence of honest opinion which would protect a defamatory statement of opinion held on the basis of either a fact which existed, but of which the defendant was unaware at the time the statement complained of was published, or on the basis of an untrue but privileged statement. This goes too far in its protection of free, yet irresponsible speech.
Libel TourismAnother supposed iniquity that the current law is held to foment is ‘libel tourism’. It is believed that England’s strong libel laws, along with the unfitness to deal with internet publication, have led to London becoming the libel capital of the world. Lord Hoffman pointed out last year that “the complaints about libel tourism come entirely from the Americans and are based upon a belief that the whole world should share their view about how to strike the balance between freedom of expression and the defence of reputation. And naturally the American view is enthusiastically supported by the media in this country (http://www.southeastcircuit.org.uk/education/ebsworth-lecture-libel-tourism).
It is not clear whether libel tourism exists to any significant extent. Lord Hoffman has noted that there is a paucity of data available. The only evidence for the existence of the problem is anecdotal (http://www.libelreform.org/the-report?showall=1). Professor Alistair Mullis has pointed out that “where a serious libel is published about, for example, an international business person or sports player, it will impact his or her reputation in whichever places he or she is well known. That there may be more publications of the imputation in one jurisdiction relative to others does not change that reality. To refuse a claimant jurisdiction where his or her reputation has been seriously damaged in this jurisdiction simply because there were relatively fewer publications of the imputation here than elsewhere is wrong.”
A WAY FORWARD?
The questions of whether corporate entities should be allowed to sue and whether the rule prohibiting public authorities from suing should be given statutory form, what to do about internet publications, reforming costs and whether there ought to be a new procedure for defamation cases are not addressed in the draft Bill. However, they have been opened up for consultation. Professor Mullis’ and Dr Andrew Scott’s recent paper on ‘Reframing Libel’ (http://www.scribd.com/doc/50901129/Mullis-Scott-Taking-all-rights-seriously-and-where-it-leads) suggests that effective reform of our libel laws would focus on a redefinition of the harm caused by defamation, in light of the recent jurisprudence on Article 8 of the European Convention of Human Rights, and on creating a procedure for hearing actions for defamation that allows access to justice for as many as possible. Legislators would do well to pay careful attention to this reasoning, which can be found at (link) rather than listening only to the clamour of the press.
Opinion: “The Government’s Defamation Bill – Insufficiently radical?” Part 2 – Alastair Mullis « Inforrm's Blog
The death of libel - is the Defamation Bill the beginning of the end for libel lawyers?- Legalweek
Opinion: “Draft Defamation Bill – Proposals, Problems and Practicalities”, Part 4 – Antony White QC and Eddie Craven « Inforrm's Blog
Defamation Bill fails to ignite | New Law Journal
The Defamation Bill – a bitter pill to swallow from Carter-Ruck , Download complete - Legal Week Law
Alan Rusbridger: The long, slow road to libel reform | Law | guardian.co.uk
Libel law: 10 reasons why defamation bill needs more work| Siobhain Butterworth | Law | guardian.co.uk
London: the capital of libel tourism? | Gavin Phillipson | Comment is free | guardian.co.uk
The Limits to Legal Professional Privilege
In the forthcoming case R(on the Application of Prudential Plc) v Special Commissioner of Income Tax, the Supreme Court will, for the second time in a decade, be asked to rule on the nature and scope of the common law right of legal professional privilege. The decision should provide some insight into the extent to which our highest court is prepared to make law.This note will define legal professional privilege, reviewing the decision in Three Rivers District Council and Others v The Governor and Company of the Bank of England  UKHL 48 (http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd041111/riv-1.htm). It will then examine the Court of Appeal decision in Prudential.
WHAT IS LEGAL PROFESSIONAL PRIVILEGE (“LPP”)?
The general rule is that cases should be decided by reference to all available relevant evidence. However, the doctrine of privilege entitles a party (or his successor in title) to withhold evidence from production to a third party or the court. Certain communications between lawyers, clients and third parties are permitted to be exempted from disclosure in this way.
LPP was described by the House of Lords in R (on the application of Morgan Grenfell & Co. Ltd) v Special Commissioner for Tax  UKHL 21 as “a fundamental human right” (http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2002/21.html).
There are two limbs to LPP:
Legal advice privilege: This protects from production any confidential communications between client and lawyer, made for the dominant purpose of seeking or giving legal advice.
Litigation privilege: This attaches to communications which come into existence with the dominant purpose of being used in aid of pending or contemplated litigation. In contrast to legal advice privilege, it can apply to communications between the client, his lawyer and third parties.
The two cases examined below address the scope of the former: how far privilege extends to legal advice not given for the purposes of litigation.
THREE RIVERS: DEFINING THE SCOPE OF LEGAL ADVICE
In 2004, the House of Lords confirmed the broad scope of legal advice privilege in the case of Three Rivers District Council and Others v The Governor and Company of the Bank of England. The appellants had lost money in the collapse of the Bank of Credit and Commerce International (“BCCI”) and brought proceedings against the defendants for misfeasance in public office.
The Court of Appeal had held that material prepared for the dominant purpose of putting information in front of the government inquiry into the BCCI collapse did not attract legal advice privilege. Such privilege was therefore confined to the seeking or giving of legal advice concerning rights and obligations.
The House of Lords considered that the Court of Appeal had set the limits of legal advice privilege too narrowly, stating that the purpose of legal advice privilege is to enable a client to place unrestricted confidence in his lawyer. The approach in Balabel v Air India [1988 Ch 317] was approved, particularly the observation that “legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context”. Advice given to the Bank by its legal advisers for the purpose of persuading an inquiry to its point of view was therefore privileged, since it fell within this description.
PRUDENTIAL: CAN PRIVILEGE BE CLAIMED FOR LAWYERS’ ADVICE ALONE?
R(on the Application of Prudential Plc) v Special Commissioner of Income Tax  EWCA Civ 1094 (http://www.bailii.org/ew/cases/EWCA/Civ/2010/1094.html), concerned an application for judicial review by Prudential of a demand by HMRC of documents under the Taxes Management Act 1970. The documents demanded included legal advice given by the accountants PwC.
The argument advanced was that it should be the function of the person giving legal advice rather than their status which should determine whether the advice is privileged. At first instance Charles J expressed sympathy with this argument, while considering that he was bound to find against Prudential, being bound by the decision in Wilden Pump Engineering Co v Fusfeld  FSR 15, which rejected the extension of legal advice privilege to patent agents.
On appeal, Lloyd LJ, giving the only substantive judgement, also considered that Wilden Pump was binding. Even if it were not, he concluded that “it is not open to the court to hold that LPP applies outside the legal profession, except as a result of relevant statutory provisions. It is of the essence of the rule that it should be clear and certain in its application, since it is not the subject of any ad hoc balancing exercise but is, to all intents and purposes, absolute. As applied to members of the legal professions, acting as such, it is sufficiently clear and certain.”
Extending LPP to advice given by other professionals would lead to “serious questions about its scope and application”. Lloyd LJ’s view was that these were questions that could only, and should only be answered by Parliament. It remains to be seen whether the Supreme Court will agree with this analysis when the case comes before it, which will be later this year at the earliest.
Update on Vicarious Liability part 1
Two recent decisions have the potential to open up a far broader range of defendants to the prospect of accessory liability for torts committed by others. Each of these decisions will here be briefly summarised and commented on.
Vicarious liability is tortious liability that attaches to a particular defendant because the law considers it to be desirable that the defendant concerned should be held responsible for the actions of the primary tortfeasor. This is commonly because the defendant who is accessorily liable could have restrained the primary tortfeasor, but often the courts seem to be inclining more towards finding vicarious liability to ensure that the victim of a tort receives proper compensation for their injuries. It will be maintained that this is the current trend and that the courts should be wary of taking this approach too far.
In the case of Lister v Hesley Hall Ltd  1 AC 215, the House of Lords discarded the old ‘Salmond’ test for vicarious liability in the law of torts, preferring instead a ‘sufficiently close connection’ test that compared the actions taken by the primary tortfeasor with those that he was (in the ordinary case) employed to do by the alleged accessory.
In JGE v English Province of Our Lady of Charity, MacDuff J has arguably extended the sufficiently close connection test to the persons who are responsible for the primary tortfeasor’s actions as well as the nature of the actions for which they can be held responsible.
The case concerned the sexual abuse of young children by a priest who was under the ecclesiastical authority of his bishop and the trustees of the diocese. The question was whether the trustees were analogous to an employer for the purposes of vicarious liability. MacDuff J held that he clearly was, rejecting the argument that priests do not receive a salary, on account of the fact that he had clothed the primary tortfeasor – both literally, in terms of clerical garb, and figuratively – in the authority of the church within the bishop’s power. MacDuff J thereby allowed a claim based on vicarious liability to be brought by the claimants.
The decision of MacDuff J is currently the subject of an ongoing appeal in the Court of Appeal, who will have to decide whether they wish to support MacDuff J’s possible extension to the test in Lister v Hesley Hall Ltd.JGE argued in the Court of Appeal that “the relationship was one of empowerment and granting of authority”, which should be seen as sufficiently close to allow vicarious liability to attach. The trustees for the diocese, however, sought to show that the responsibilities imposed on employers were not “infinitely extendable” in other spheres, and that it would be “a substantial leap in reasoning so as to associate the priesthood ipso facto with sexual abuse.” Moreover, the trustees argue, the priest owed only respect and reverence to the bishop, but only as a collaborator rather than as an inferior in the same way that an employee is inferior to his employer.
Should the Court of Appeal accept that the extension proposed in the First Instance in JGE v English Province of Our Lady of Charity can be maintained, then the court must be prepared to provide close guidelines to ensure that certainty is retained and vexatious claims against supposed accessories to a tort. Such guidelines are necessary to ensure coherence and the exposition of principle in the courts.
Update on Vicarious Liability part 2
Part 1 of this update on vicarious liability dealt with the expansion of the sufficiently close connection test. This second part shall focus on a recent Court of Appeal decision regarding the liability of a parent company for the actions of its subsidiaries.
Chandler v Cape plc represents a significant step for the law. Generally, shareholders enjoy substantial limitations on their liabilities for the companies in which they hold shares. However, the Court of Appeal has now ruled on an issue hitherto not discussed and found that a parent company may be liable for the actions of its subsidiaries.
The facts were that Cape plc owned a subsidiary company, Cape Building Products Ltd, which employed Mr Chandler and had exposed him to asbestos at a time when the dangers of asbestos exposure were becoming increasingly well known. Mr Chandler was diagnosed with asbestosis in 2007 and sought to sue his employer.
The subsidiary company owned at all pertinent times by Cape plc had since ceased to exist, hence the Court of Appeal needed to consider Cape plc’s liability or otherwise. Arden LJ gave the leading judgment and held that a duty of care was established and confirmed that a accessory in ‘assuming responsibility’ did not have to do so voluntarily, and thus it was better to speak of liability ‘attaching’ in a given instance. Implicit in this suggestion is that the courts will have the power to deem responsibility to have attached where the courts see fit.
This power of the courts should not be misused, and sometimes one must accept that circumstances may mean that recovery is impossible and that this is one of the vicissitudes of life. Arden LJ recognised this and gave some factors which courts should consider as guidance in these situations. Her Ladyship’s guidance is summarised below.
Responsibility for health and safety matters will be likely to attach to a parent company where:
There is no need for the parent company to have absolute control over the subsidiary, nor must behaviour be shown that was outside the normal features of a parent-subsidiary relationship. The Court of Appeal were clear that they will look at the relationship between the companies holistically to determine whether the necessary nexus had been proven on the facts. In Chandler v Cape plc, this was evident in the fact that Cape plc frequently issued instructions about Cape Building Products Ltd’s products, with the subsidiary only incurring capital expenditure on approval by Cape plc.
- The businesses of the parent and subsidiary were the same in some relevant manner (for example, each produced the same type of product);
- The parent had, or ought to have had, superior knowledge on some relevant aspect of health and safety in the particular industry concerned;
- The subsidiary’s system of work was unsafe, and the parent company knew this, or ought to have so known;
- The parent knew, or ought to have foreseen, that the subsidiary or its employees would rely on its using that superior knowledge for the employees’ protection.
In the absence of previous debate on this matter in the courts, it is natural to wonder how far this will apply. There are obvious ramifications if parents can be held liable for the actions of their subsidiaries – primarily, if a corporate entity is considering purchasing a company, are they opening themselves to potentially accepting the bill for the negligence of a subsidiary of that company that may, as in Chandler v Cape plc, have moved elsewhere or been dissolved? Solutions to this could include indemnity assurances when purchasing the company, but why should we introduce further stages to make commercial enterprise more difficult than it already is? The answer lies in the current trend in the courts, as identified in Part 1 of this update on vicarious liability, to seek to ensure that the victims of torts can receive compensation for injuries sustained. This is an admirable objective, but the mantra that ‘hard cases make bad law’ should be held firmly in mind.
Easement to transmit Soundwaves
English law has yet to establish whether or not an easement to create noise can exist. The issue almost surfaced in a recent case in front of the Court of Appeal. Involving a number of parties, the case will be referred to as Coventry v Lawrence  EWCA Civ 26.
The facts of the case were that the original claimants, who had recently purchased a residential property in the countryside, brought an action in nuisance against the operators of a motorcycle racing ground that was nearby. Ultimately, no decisions were made as to whether or not an easement to create noise can exist, none being necessary given that the nuisance claim failed on the basis of the changed locality of the area (the racing ground had been given planning permission). Moreover, Mummery LJ was dismissive discussion of such an easement – ‘“An easement of noise” might make an interesting moot, but we are not a Moot Court.’ However, given that any such easement could be significant (as it might have been in Coventry v Lawrence, or in Dennis v Ministry of Defence  EWHC 793 (QB)), it is worth considering.
Starting with the classic three conditions laid down in Re Ellenborough Park  Ch 131 (CA), the first three conditions can exist in a given instance such as in Coventry v Lawrence – (i) the easement had a dominant and servient tenement, (ii) the easement accommodated the dominant tenement, (iii) the dominant and servient owners were different persons. The issue lies in the final condition – is the right capable of forming the subject matter of a grant of an easement?
Lewison LJ in Coventry v Lewis discussed this obiter. His Lordship held that a clear positive easement only exercisable during certain times of the day can exist, drawing on the court of first instance in Batchelor v Marlow  1 EGLR 119 (overturned on other grounds in the Court of Appeal  1 WLR 764). His Lordship also found ‘no conceptual difficulty’ in the existence of a positive easement to transmit sound waves across the servient tenement, though declined to firmly decide the point.It is maintained that a clear part of living is making some noise on one’s property and thus the easement should be able to exist as more than a mere a recreational right under Re Ellenborough Park. Lewison LJ sought to support this with reference to Lord Parker’s analysis of Lyttleton Times Co Ltd v Warners Ltd  AC 476 in Pwllbach Colliery Co Ltd v Woodman  AC 634.
There is no reason in principle why it should not exist – no sensible distinction can be made, for example, between noise and smell (which can be the subject of an easement. It not necessary for a human agent to intrude on property, and a physical change does occur on the servient property when the sound waves pass over (it is overly technical to require the physical presence of new particles on the servient land, which would be the only distinction between noise and smell).
The problems with recognising an easement to transmit sound waves, are not so much based on principle, but on practicality. The real difficulty in establishing an easement to make noise lies in its creation – as Buckley J identified in Dennis v Ministry of Defence, the right must be clearly defined in both intensity (in decibels) and frequency, and the tracts of land over which the noise can travel (such as the flight paths in Dennis v Ministry of Defence) must be identified.
The creation of the easement through implication will be exceptionally difficult – both because the requirements laid down by Buckley J may be hard to imply, and because there will be great difficulty in demonstrating the existence of either a common intention to create the easement (Pwllbach Colliery, per Lord Parker) or the necessary continuous and apparent properties of the easement (Wheeldon v Burrows (1879) LR 12 ChD 31) given that the right would likely not be evident on a reasonably careful inspection (Ward v Kirkland  1 WLR 601, per Ungoed-Thomas J; also no physical indicator of the easement (Borman v Griffiths  1 Ch 49)). Moreover, the necessity of a right to make noise as would require an easement to be a defence to a claim in nuisance, considering the reasonable user of the dominant tenement, is highly questionable.
Essentially, there are only practical issues in creating an easement to permit the passage of noise over a servient tenement. In principle, such a right can and should be permitted to exist. It will be in rare circumstances, however, where such a right will be found.
Shell UK Ltd v Total UK Ltd
A claim in negligence was made for the damage caused to a pipeline and for consequential economic loss resulting therefrom. However, the claimant was merely a beneficial owner of the pipeline and therefore did not have the apparent property right necessary to maintain the claim without it being rejected as an incidence of pure economic loss.
The Court of Appeal allowed the claim, with Waller LJ asserting that the law should allow ‘the “real” owner’ to have standing, with ‘the “legal” owner being little more than a bare trustee of the pipelines’. This assertion demonstrates a failure to engage with the true nature of a trust and the relationships formed therein, ignoring several authorities that militate against this conclusion. This approach further evinces a lack of attention to the theoretical nature of a property right and simply assumes one to exist.
Whilst the overall result of the case was desirable, the reasoning which led there was flawed since a beneficiary does not have a property right over trust property, merely an equitable one. The Court of Appeal could have found a property right under Healey v Healey  1 KB 938, which allows a possessory title to goods to be claimed where a beneficiary had actual possession of the chattels, but they did not here do so.
A separate analysis by which the claimant could have been granted his claim would be via the tort of public nuisance. Permission was given to appeal to the Supreme Court, where this point was to be argued, but the case was settled before it reached that stage – unfortunately so, from an academic perspective.
The final alternative would have been to permit a claim for pure economic loss on the facts, creating a new and very limited exception to the general prohibition on such claims for those claimants who are beneficiaries of trust property. If suitably limited, there would be no floodgates issues, though the potential for future expansion would require consideration – consider, for example, the dangers of granting all beneficiaries of a pension fund sufficient interest to sue in tort.
The interest in this case is that the court was willing to compromise on clear rules of equity so as to achieve a commercially appropriate decision – Waller LJ expressly followed the ideas of ‘practical justice’ that influenced Lord Goff in White v Jones. One must ask, however, whether the pursuit of ‘practical justice’ can override the concerns that arise from the Court of Appeal’s approach. Whilst any other result would admittedly be a triumph of form over substance, this is only because the beneficial owner was in complete control of the legal owner – ordinarily, there is a much clearer separation of the legal and beneficial rights, thus Waller LJ does simplify the analysis somewhat. It would be intriguing to see how the court would approach a similar case, save for the fact that the holding company was more than a mere ‘shell’ operated by the beneficiaries.