The Colston Four and ‘perverse’ jury verdicts: a very English tradition

The UK “Colston Four” trial of various people involved in removing the statue of the slave trader (and “philanthropist”) Edwin Colston from the streets of Bristol has focused attention on so-called “perverse” court verdicts and what, if anything, to do about them. Those lovers of England’s Common Law, Britain’s “rule of law”, trial by jury and Magna Carta (from which English jury trial may be seen to have derived) feel there is something wrong when that system allows protesters to apparently flout the law for political purpose.

Yet “perverse” verdicts are part of the great English legal tradition with almost constitutional import, greatly admired as a way of spurring social progress or resisting an overwheening authority. The believers of our great British traditions and the rule of law might perhaps be proud of the fact that occasionally a defiant jury has achieved a result of social importance through wholly legal means (bringing in a verdict).

The Seven Bishops case
A jury’s verdict does not set a precedent. Each case is on the facts; the jury’s decision cannot (in a legal sense) be impugned (unlike the rulings of judges or their summings up for juries in criminal cases).  But a  jury did set a precedent of sorts once – the ultimate precedent, that juries shall not be browbeaten by the authorities into giving the “correct” verdict. It is the precedent that underlined that juries should come to their own view on the cases before them, however angry it makes the authorities (or, in the present day, the newspaper people even before they were able to read the judge’s comments in the Colston case). The pride the British people have in the jury system (as enunciated in centuries of good old-fashioned Angolo-centric British history, none of your “woke” quasi-Marxist stuff) derives from that case: the Trial of the Seven Bishops.

Priti Patel and bullying: what is the law?

Can a person whose behaviour constitutes bullying really be exonerated if there was “no intention” to bully, as the case of Priti Patel, UK Home Secrtary, suggests? The answer is fundamentally no – but overwhelmingly, yes, since workplace bullies throughout the country claim this defence in disciplinary proceedings – and usually successfully when their management is willing to give them the benefit of the doubt.

Can the bully be exonerated because she is working in a “challenging” job with people resistent to change, as Patel claimed? Again the answer is no. If you resort to bullying in these circumstances that would be bullying as a technique of management – and hence intentional; or you’ve simply lost it and should be moved from your post or at the very least get some retraining. But again the answer is “yes” since blaming the victims is always a good ploy for a manager facing a sympathetic disciplinary chair.

One hesitates to say that the Patel bullying scandal has set back the rights of employees making bullying allegations since the two excuses – “I didn’t mean it” and “they drove me to it” are standard tropes when such allegations are made. They have no basis in logic or law yet employers use them to find against staff making bullying claims or mitigate the offence to the extent that throwing in a bit of anger management is deemed sufficient to show something is being done.

The prime minister, Boris Johnson, is in the lucky position of having arbitrary powers under the Ministerial Code to throw out allegations however well founded. Employers have to show themselves acting more fairly and rationally in such cases and must have somewhat stricter codes of conduct, anti-bullying policies and disciplinary procedures. Nevertheless, whatever the rules, the complainant is at a disadvantage whenever an employer backs a bullying manager.

UK Parliament or Executive: which is top dog in Britain’s constitution?

Boris Johnson is telling all who are willing to listen that he has a mandate from the people to cling to his post as prime minister come what may. This gives him remarkable powers –  to ignore the long established traditions of his party and of Parliament regarding when a prime minister has run out of road and should resign.

Does he have any constitutional justification for his view? There have certainly been questions asked about whether Britain’s “sovereign” Parliament as important – or as sovereign – as we assumed. There can be heard the steady drumbeat of those who think Parliament is a secondary part of the British constitution – and should stand aside to let the Government govern and the Prime Minister have his way.

This is in contrast to, say, the barrister Lord Pannick in the second constitutional case launched by Gina Miller (R (Miller) v The Prime Minister 2019) on Boris Johnson’s prorogation of Parliament. Pannick was at pains to suggest, contrary to the generally held constitutional view, that Parliament (rather than simply laws passed by Parliament) was sovereign and so the Prime Minister’s power to prorogue (end the parliamentary session, dismissing MPs and peers until a new session is called) should be open to judicial oversight regarding the legality of its use, like most actions of the Executive (including those founded in the royal prerogative).  

The argument against Parliament
So the question arises, which is the premier body in the British constitution, which is top dog: the Executive or the Legislature? As it happens, the historian Robert Tombs had answered this question to his own satisfaction in the Times some weeks before Miller in a piece headlined: Parliament has no right to plot a Brexit coup.

UK Government of National Unity? Here’s how (perhaps)

So, in light of the Brexit deadlock, we need a “Government of National Unity” according to the former UK Prime Minister Sir John Major (and others). But how do we get from here to there? He (and others) are pretty clear that a General Election would be divisive, time-wasting and pointless – not least since the two main parties are as divided amongst themselves as they are between one another. No clear “will of the people” is likely to emerge.

On top of which no one can trust the Prime Minister Boris Johnson and his adviser, Dominic Cummings, not to fiddle the election date for political purpose, such as sneaking Britain out of the EU without a deal.

What are the constitutional options? Parliament, or more specifically, the House of Commons, has the power to bring down a Government in a vote of no confidence. The assumption is that this would probably lead to a General Election (under the Fixed-term Parliaments Act) if no other MP was “best placed” to take over as PM. But there is also a useful traditional power for MPs to vote out the Government and then replace it without an election.

This might be a handy ploy if there really is enough cross-party opposition to Boris Johnson’s government – and majority support among MPs  for some other way out of the Brexit maze. It would mean more than simply “Parliament taking control” with the occasional anti-No Deal vote. If Parliament really wants control over deciding how Britain leaves the EU, it also needs a Government to bring its wishes into effect. 

Do we need a modern treason law? A historical perspective

The Shamima Begum affair has – inevitably – prompted another outing for those who want Britain’s treason laws updated and reinvigorated. There seems no particular law to deal with someone who leaves Britain to marry into Isis, so why not dust off the medieval notion of treason and make it apply to Begum and her ilk?

It is an error to think that the treason law has never been modernised since the original Statute of Treasons of 1351 (still on the Statute Books here). In fact over the centuries it was updated to protect particular English and British monarchs or to deal with particular threats as and when they came up, such was the dissent that accompanied the countries’ oft-changing regimes. This list counts nearly 100 statutes as Treason Acts, some reforming legislation such as the 2013 Succession to the Crown Act, which extends the protection to female heirs apparent, others intended to crack down on the latest threat.

A ‘sovereign’ Parliament hamstrung over Brexit – or taking control?

The UK Parliament is sovereign – but do those who know of and respect this constitutional principle really understand how limited Parliament’s sovereignty is? Much has been said of parliamentary sovereignty in light of Brexit: by those who wish to leave the European Union to reestablish UK parliamentary sovereignty; but also by those who feel Parliament could wrest decision-making about how the UK actually leaves from the flailing Government.

In fact Parliament is not sovereign in the sense that the collective will of MPs and/or Peers in the House of Lords holds sway. It is parliamentary legislation that is, in effect, sovereign. In the traditional formulation “the Crown in Parliament” is sovereign, meaning legislation having passed its three stages in the Commons, Lords and Royal Assent will be recognised by the courts. And, for the most part, it is the Government that brings legislation to Parliament, not individual MPs or Peers (though there are exceptions: see below).

One thing MPs can do is bring down the Government in a vote of no confidence. The assumption is that this leads to a General Election (under the Fixed-term Parliaments Act) – but there is also a useful traditional power for MPs to vote out the Government – and replace it without an election. This might be a handy ploy if there is enough cross-party opposition the Government’s Brexit approach – though it would amount to a parliamentary coup. The implications are looked at below (subhead: Bringing down the Government) and here in mor detail: Government of national unity? Possibly.

But generally in the great Brexit debate, Parliament has found itself somewhat constrained – hence some of the innovative procedural schemes that have come forward thanks to Dominic Grieve and others to allow backbenchers to “take back control”.

Mental Capacity (Amendment) Bill and DoLS: Welcome but flawed concession

A useful byproduct of the Brexit madness in the UK Houses of Parliament seems to have been a small outbreak of moderately good sense in a matter far removed from the political hurly burly. To avoid a defeat in a fractious House of Commons, the Government has taken on board serious worries and U-turned over a proposal in the Mental Capacity (Amendment) Bill that is intended to deal with the debacle over the law on deprivation of liberty safeguards (DoLS) for those in care lacking mental capacity.

Those new to this subject may wish to start here: Deprivation of Liberty Safeguards Chaos. But, in brief, the judgment in P v Cheshire West ([2014] UKSC 19), left care providers having to take to court huge numbers of cases over potential deprivation of liberty of people lacking mental capacity. The issue was summed up thus:

“This case is about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised, either by a court or by the procedures known as the deprivation of liberty safeguards [DoLS], set out in the Mental Capacity Act 2005 (“the Mental Capacity Act”). If they do not, no independent check is made on whether those arrangements are in the best interests of the mentally incapacitated person.” (Cheshire West at 1)

Cheshire West was  intended to deal with the problem that local authority packages of care for people who lack mental capacity may constitute a breach of Article 5 of the European Convention on Human Rights on right to liberty.  This, even though the care may have been in a care home or the individual’s own home – a situation characterised as “gilded cages” by critics of the judgment. So deprivation of liberty can occur “in community and domestic settings where the State is responsible for imposing such arrangements” including supported living arrangements (Department of Health Guidance, October 2015).

Courts became the only backstop to gain authorisations for people lacking mental capacity (so unable to consent to deprivation of liberty) in care homes, or their own home under a care package, to prevent this putative deprivation of liberty occuring without legal sanction.

Boris Johnson’s colourful private life: a matter of public interest?

It is open season in the UK press on MP Boris Johnson’s “colourful” private life as it is revealed that he and his wife are divorcing. He is alleged to be a serial adulterer with one woman said to have had an abortion as a result of a liasison with him and another having had an illegitimate child.

But here’s the legal issue: could Johnson, in light of the UK Supreme Court “celebrity threesome” judgment, get injunctions against publication of such material? Lord Mance, explaining that judgment (PJS v News Group), declared:

“There is no public interest, however much it may be of interest to some members of the public, in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them. It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.”

The judgment itself set the seal on an emerging privacy law, asserting that even the re-publication of material already accessible to all was an offence against an individual’s privacy because of its likely “intrusive and distressing effect”.

But is there a Boris exception? Do we have a legitimate public interest in the private life of a man who has occupied some of the highest political positions in the land ?

On the one hand, the argument might run: we already know Johnson is a bit of a roué who hasn’t always observed his marriage vows to the letter; we’ve seen some of these stories already. Retailing them once more (or adding a few others, if there are any) hardly corrects a “misleading public impression”. They are merely intrusive and distressing. Injunction granted! 

On the other hand, the right to privacy may be outweighed “by the public interest in the recklessness of the father”, as Judge Nicola Davies put it in the High Court in 2010 when the mother of Johnson’s illegitimate child sought an injunction against the Daily Mail to prevent further identification of the baby as Johnson’s.

Impeachment: its origins in Medieval England – and revival in modern Britain?

Impeachment – the ousting of presidents by the actions of parliaments and similar representative bodies – seems to be in vogue just now, whether in Zimbabwe, Brazil and now in the US in the case of Donald Trump. There is even talk of it’s being revived to deal with Boris Johnson’s shenanigans. But what is it and where did it come from?

Although most associated with presidential systems, its origins lie in medieval England, a time when the monarch’s Great Council was deemed to have the powers of a court of law.

The Council was what we know of as the House of Lords now. It was only with the early development of the House of Commons that the notion of impeachment developed. The bicameral nature of Parliament led to the interesting constitutional innovation: the idea that Parliament can put on trial ministers of the monarch for failing in their duty, even though those ministers were (and in theory remain to this day) responsible to the monarch, not to Parliament.

This is the thinking: It was accepted that “the king can do no wrong”; it followed that if the king apparently did a wrong, such as breach a longstanding agreement with Parliament, it was the king’s agent, not the king, who had done the wrong – a member of the king’s executive, one of his advisers.

The Great Council, when it was a baronial body, always had the role of a judicial body, albeit mainly to approve the legal judgments of the king. So, the argument ran, the remnant of that Council, the House of Lords (barons and bishops), could judge individuals but not bring charges against anyone. The House of Commons, however, had no such restriction, so it took it upon itself to bring charges as necessary against the monarch’s ministers to the Lords for their judgment – impeachment.

Monroe v Hopkins libel case: a retrograde judgment

Is it possible that Britain’s populist polemicist Katie Hopkins may be right? Perhaps, just on this one thing: the outcome of the Jack Monroe libel trial. She says the High Court judge who found against her for her inaccurate and rude tweets against Monroe was wrong and she intends to appeal. [Note: in the event no appeal was forthcoming.]

Monroe was awarded £24,000 in damages in the High Court in a row over a tweet implying the food writer and activist approved of defacing a war memorial during an anti-austerity demonstration in Whitehall. Hopkins had simply confused Monroe with left-wing polemicist Laurie Penny. She deleted the tweet but then sent one out  suggesting that, nonetheless, Monroe was a pretty awful person (“social anthrax” was the term used).

In the case Mr Justice Warby noted that:

“Libel consists of the publication by the defendant to one or more third parties of a statement about the claimant which has a tendency to defame the claimant, and causes or is likely to cause serious harm to the claimant’s reputation.”

Serious harm to reputation is crucial, particularly since the Defamation Act of 2013, which enshrined the concept in legislation – with the clear intention of curbing defamation actions seen as wasteful of court time and (one suspects) irritating to the Conservative Government’s friends among newspaper owners. It says at Section 1:

“(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

The intention was to focus on real harm and deter trivial cases. But reading the Monroe judgment, one can’t help thinking that Warby underplayed “serious harm” and somewhat overplayed Monroe’s hurt feelings once Hopkins’s loyal fans got to work on Twitter.