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.

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.

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.

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.

The celebrity threesome and a judicial foursome

Has the UK Supreme Court attempted to put the frighteners on the British press in the “celebrity threesome” sex case of PJS v News Group? The matter has not yet come to full trial, yet Lord Mance, who gave the lead judgment from the interim injunction hearing, has already accepted there is no public interest in the issue of who is PJS, the celebrity in the threesome.

Does this mean the Sun on Sunday, seeking to overturn an injunction against naming the alleged adulterer and his spouse, known as YMA, has been declared the loser before the case is heard?

Lord Mance has also suggested the Supreme Court might be amenable to establishing that damages for publishing such stories could be exemplary (a notion rejected in Mosley v News Group at a lower court level); or perhaps there could be innovative use of an “account of profits” – in effect handing over profit gained from use of private material. In Douglas v Hello regarding Hello’s unauthorised coverage of the Douglas/Zeta-Jones wedding, Lord Phillips said: “Such an approach may also serve to discourage any wrongful publication, at least where it is motivated by money.”

Arguably the court has also favoured the extension of the right to privacy beyond the limits set in the Human Rights Act and (at least until recent years) by Common Law – to the way a story is told rather than the mere confidential facts – thus embedding the so-called judge-made privacy law.

Lord Mance, in introducing his judgment to the press, said this (according to the Guardian):

“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.” 

 This is subtly different from the rather more circumspect phraseology of Mance’s actual judgment, on behalf of himself and three other justices:

“There is on present evidence no public interest in any legal sense in the story, however much the respondents may hope that one may emerge on further investigation and/or in evidence at trial, and it [lifting the injunction] would involve significant additional intrusion into the privacy of the appellant, his partner and their children.” (para 44; emphasis added)

The judgment is, quite correctly, hedged around with qualifications whereas the press statement is boldly assertive – and arguably misleading, suggesting that the highest court in the land has established a legal principle and found the Sun on Sunday outside it in seeking to run the PJS story. Why the difference?

Young boy’s ‘sexual experimentation’ that led to lifetime criminal record

Note: The UK Supreme Court has ruled on this and similar cases. See Update below.

The case of a 12-year-old boy’s “sexual experimentation” with male friends in a garden shed more than 10 years ago has joined a series of legal challenges to UK policy on maintenance and disclosure of records of “spent” convictions and police cautions. 

The boy, G, and his mother had been told  in 2006 the record of his “reprimand” (a minor caution for juveniles; see S.65 Crime and Disorder Act 1998) for two counts of sexual assault would be wiped out when he was 18. But when in 2011 he applied for a job in an employment agency at the library of a local college he was shocked to find that the police reprimand appeared on records at the Criminal Records Bureau. He withdrew his application to avoid the reprimand being revealed.

In 2006 Association of Chief Police Officers (ACPO) policy on keeping records had changed from weeding them out after five years if there was no subsequent offending to retention for 10 years. After 2009 it became police policy to retain caution and conviction information until the subject reaches 100 years of age.

G and his mother had been misinformed about the five year period and now he had been caught by the “aged 100 rule”. An appeal by G to the Chief Constable of Surrey for the record to be expunged was rejected. 

Kiarie and Byndloss: foreign criminals lose Section 94B Immigration Act appeal

UK Court of Appeal judges have rejected cases brought by two men against the use of a tough new law brought in to curb the rights of foreigners convicted of criminal offences to challenge deportation orders — the so called “deport first, appeal later” system.

The judgment is a strong endorsement of the new system in an early legal test of the new Section 94B of  the Nationality, Immigration and Asylum Act. However, the judges have criticised “misleading” guidance on using the new provision issued by the Home Secretary, Theresa May.

Kevin Kinyanjui Kiarie, born in Kenya, and Courtney Aloysius Byndloss, a Jamaican, have hit the headlines as they challenged the provision that requires some of those facing deportation to leave Britain and make their appeals against deportation from their country of origin.

According to Section 94B of the Nationality, Immigration and Asylum Act 2002 (inserted in 2014 by the new Immigration Act — see provision below) this procedure should occur if the continued presence of the individual in Britain is considered “not conducive to the public good”.

Under the new provision the Secretary of State would certify this to be the case, and that the individuals’ ECHR Article 6 rights (to a fair hearing at court) would not be harmed by pursuing an appeal against deportation “out of country”. Certification can only occur if the the individual would not “face a real risk of serious irreversible harm if removed to the country or territory to which [the person] is proposed to be removed”.

Deprivation of Liberty Safeguards descend into costly chaos

Is Britain’s Deprivation of Liberty Safeguards regime, intended to protect people receiving state care in care homes, hospitals and supported living schemes, turning into an expensive legalistic shambles as a result of a controversial human rights case in the UK Supreme Court? The case, Cheshire West ([2014] UKSC 19 ), was intended to deal with a very real 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 (right to liberty) – even though they are put in place in the interests of the disabled person and even if they are living in a family home. But a couple of bizarre recent cases in the lower courts suggest there is a real problem.

Critics of the Supreme Court position on Deprivation of Liberty Safeguards (DoLS) talk of “gilded cages” and argue that human rights should not intervene too rigidly in the discretion of social workers acting in the best interests of clients lacking capacity. Nevertheless, to have no protections in place or to deny them to people without capacity would clearly be wrong and specifically a breach of Article 5 and Article 14 (“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination”.) The Supreme Court came up with a new definition of deprivation of liberty:

“The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.”

Compliance or even agreement by the person involved did not prevent the arrangements being a deprivation of liberty. It followsed from this that social services staff had to put care plans under more intense review and particularly that social services departments could not authorise their own social workers’ schemes when they involve domestic supported living arrangments or complex cases – which require the sanction of the Court of Protection. (Note on the judgment here) Once a court has found deprivation of liberty, a regime of expensive legal safeguards must be put in place with oversight by the courts. This is the real issue of controversy as far as local authorities are concerned.

Human Rights Act: Are these cases trivial?

It may be worth while looking at a few recent cases under the UK Human Rights Act 1998 – now under threat from the Conservative Government. They aren’t leading cases but they raise the question of what counts as “trivial” in the mind of the Government (which wants to limit the use of Human Rights laws to the most serious cases and exclude “trivial” ones) and what principles the Government is seeking to abolish with the HRA. In particular why they wish to abolish the principle that:

“Everyone whose rights and freedoms as set forth in [The European Convention on Human Rights] are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” (ECHR Art 13)

For that is what abolition of the HRA means: that individuals will receive only those human rights Parliament (in effect the Government) says they should receive; and legal barriers will be put in their way of those seeking human rights justice against the State and its offshoots. Section 6(1) of the Human Rights Act makes it illegal for a public authority, which includes a court, to act in a way which is incompatible with Convention rights. That will no longer necessarily be the case.

Neuberger, Charles’s black spider memos – and the coming constitutional crisis

Judges in Britain are not supposed to overrule primary legislation that has passed through a sovereign Parliament. Yet that, on the face of it, is what seems to have happened in the UK Supreme Court’s judgment on Prince Charles’s “black spider memos”. And it is deeply paradoxical that it is Lord Neuberger, President of the Supreme Court, who has committed this apparently unconstitutional act, striking at a core “democratic” principle – that Members of Parliament (albeit a chunk of them unelected) pass laws, not judges.

For Neuberger has in the past expressed fears about the UK Supreme Court becoming a “constitutional court” with a dangerous potential for defying Parliament. In a 2009 BBC interview when he was Master of the Rolls (having refused to continue his role as a House of Lords judge into the new Supreme Court) he talked of the danger of “mucking around” with the British Constitution saying there was a risk  “of judges arrogating to themselves greater powers than they have at the moment”.