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. Continue reading
Filed under Analysis, Constitution, ECHR, European Convention on Human Rights, History, Human rights, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics, Uncategorized
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. Continue reading
Filed under Analysis, Comment, Constitution, Criminal law, European Convention on Human Rights, History, Human rights, Law, Legal, Politics, UK Law, UK Politics, Uncategorized
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.
Filed under Analysis, Comment, Defamation, ECHR, European Convention on Human Rights, Human rights, Law, Legal, Media, Media law, Politics, tort, UK Law, UK Politics, Uncategorized
Here are some of what seem to this writer crucial exchanges during the third day of the Brexit High Court case R (Miller and Santos) v Secretary of State. They concentrate on exchanges between the judges in the case and the lawyers. The original runs to 160 pages. The digested version of the first day is here. And the second day is here. The links to the transcripts appear at the bottom along with quoted cases and comment. (Note, some page numbers are included; they come at the bottom of the relevant pages ie refer to the text above). A report on the Supreme Court case is here: What if Eadie was right?
The third day of this case (Oct 18)
James Eadie QC on how the Article 50 notification process would work. He notes “there will on any view be considerable further Parliamentary involvement in the future” to which the Lord Chief Justice replied “Mm-hm”.
MR EADIE: [I]f there was an Article 50(2) withdrawal agreement, that would be a treaty between the United Kingdom and the EU.
THE LORD CHIEF JUSTICE: Yes.
MR EADIE: As such, it is likely that it will come within the procedures in CRAG [Constitutional Reform and Governance Act 2010]. … It will be a treaty, but I say likely to fall within the procedures within CRAG, because CRAG, like the Ponsonby memorandum which it sought to embody … CRAG only applies to treaties which are subject to a formal process of ratification. See, amongst other things, section 25(3) and (4), and indeed the process of ratification which is the cornerstone of the Act in section 20. Now, almost all treaties are, but not all treaties are, subject to ratification. In other words you can on the international plane enter into an agreement without ratification necessarily following … those agreements do happen but they are pretty rare, and it is considered very likely that this agreement, if entered into, in other words the 50(2) agreement, would be a treaty requiring ratification. Of course one can’t exclude the theoretical possibility that it wouldn’t be.
Filed under Analysis, Comment, Constitution, EU law, Human rights, Immigration law, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics
Here is the second part of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State for those not wishing to read the 580-odd pages of the transcript. It mainly contains Eadie’s second day arguments on behalf of the Government. They look mostly at questions put by the judges in the case and the answers. The links to the transcripts appear at the bottom along with quoted cases and comment. The digested version of the first day is here. And the third day is here. A report/analysis of the Supreme Court case is here: What if Eadie was right?
The second day of the case (Oct 17)
Ms MOUNTFIELD: Since the passage of the European Communities Act, no EU treaty has ever been ratified without prior Parliamentary authority, and I submit that that is necessary because of the two otherwise inconsistent constitutional principles. The Crown can make treaties, but not if, or to the extent, that they confer rights or impose liabilities in domestic law, or withdraw rights and liabilities in domestic law. I say that the consequence of that is that while the European Communities Act is in force, the prerogative power, either to make further treaties or to amend treaties, or to withdraw from treaties is impliedly abrogated, because otherwise it would be the Crown and not Parliament which would be conferring or withdrawing rights.If there is any doubt about that, section 2 of the European Union Act expressly provides that the Crown may not ratify a treaty which amends or replaces the existing treaties without Parliamentary authority, through various procedures.
I submit that since the purpose of that provision is to prevent the Crown from altering the foundations of EU law as it applies within the UK without Parliamentarysanction, and we have quoted William Hague introducing the 2011 Act saying that, by necessary implication, that restriction extends to any act of the Crown which would withdraw from or revoke those treaties without Parliamentary sanction, and thereby remove directly enforceable rights.
Filed under Analysis, Constitution, EU law, Human rights, Immigration law, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics
Here are some of what seem to this writer crucial exchanges during the Brexit High Court case R (Miller and Santos) v Secretary of State. mainly to do with Lord Pannick’s first day arguments for the claimants. The links to the transcripts appear at the bottom along with quoted cases and comment. A report/analysis of the Supreme Court case is here: What if Eadie was right?
Firstly, two extracts from the first day of this case (Oct 13)
Exchange between Lord Justice Sales and Lord Pannick QC (for Miller) at page 54/55 of the draft transcript:
SALES LJ: Am I right in thinking that you say that the effect of the argument for the government would be that there wouldn’t need to be a repeal of the 1972 Act or section 2 of it, it is just that the content of the obligation in section 2, EU rights, would fall away, because they would cease to be EU rights?
16 LORD PANNICK: Precisely. Your Lordship is very aware and I am not going to enter into any political debate, but your Lordship knows that the government have announced that there is going to be a great repeal bill which is to be produced some time in the next session. I say that the consequence of the defendant giving notification will be that at a point in the future, it is inevitably the case that the United Kingdom leaves the EU and the consequence of that, as a matter of law, is that all of the rights enjoyed under section 2(1) and
section 3(1), which is the process rights relating to the Court of Justice, fall away. There is simply nothing left. And therefore a great repeal bill, politically or otherwise, may be desirable. I say nothing about that. It will not affect those questions. Those rights will fall away as a consequence of the United Kingdom leaving the EU. Because when we leave, there are no treaty obligations. That is the whole point of leaving. And indeed that is the government’s intention. This is not a happenstance, this is the whole point of notification. Notification is intended to remove the current substance of section 2(1) and 3(1). Continue reading
Filed under Analysis, Business law, Comment, Constitution, EU law, Henry VIII powers, Human rights, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics
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”.
Filed under Analysis, Criminal law, ECHR, European Convention on Human Rights, Human rights, Immigration law, Law, Media, Politics, Public law, UK Law, UK Politics