A modern-day "conchie"

Published in Criminal Law and Justice Weekly, vol 176, 3 March 2012, p 135

Conscientious objection to military service has provided much drama in both fiction and real life for many years. In fiction one finds examples in the recent Downton Abbey, or the gentle Private Godfrey in Dad’s Army, and countless other works as well.


The most famous non-fiction example is possibly Mohammad Ali, who chose jail rather than serving in Vietnam against an enemy he did not know on behalf of a state that declined to afford him full civil rights.

Recently the case of R v Lyons [2011] EWCA Crim 2808 raised the same issue in the context of Britain’s modern wars.

Lyons held the rank of leading medical assistant in the Royal Navy. In May 2010 he was told he would be deployed to Afghanistan. He formed the view that the UK’s involvement in the conflict was wrong and that it would be morally wrong for him to take part. He therefore applied for discharge on the ground that he was a conscientious objector. The application was refused and he appealed. Before his appeal was determined, he was ordered to undertake a pre-deployment weapons training course. He refused to participate. He was court-martialed and found guilty of intentionally disobeying a lawful command contrary to s 12(1)(a) of the Armed Forces Act 2006. He was sentenced to seven months’ military detention, demoted to able seaman and dismissed from the service. He appealed against sentence.

Historical background

Objection to war – a particular conflict or warfare in general – on religious or secular grounds is no doubt as old as war itself. In Britain the armed forces have historically been recruited on a volunteer basis. Full-scale conscription was unknown in this country until the Great War, when the British army found itself drawn irrevocably into the sort of full-scale conflict on the Continent which it had spent a century planning to avoid. By contrast, most Continental powers had had compulsory military service for generations, the modern origins lying in the French Revolution and the subsequent creation of the Grande Armée.

It is therefore noteworthy that Britain was the first amongst European powers to have formal legal recognition of conscientious objection. Mention was made in the Militia Act 1757, but the story in modern times begins with the Military Service Act 1916, an Act which simultaneously introduced conscription and the recognition of objection on the ground of conscience.

During the Second World War, nearly 60,000 registered as Conscientious Objectors. After national service ended at the start of the 1960s, formal procedures for dealing with conscientious objectors fell away, until in 1970 the Advisory Committee on Conscientious Objectors (ACCO) was formed as a non-departmental public body to advise the Secretary of State for Defence.


Continue reading here.

Riot sentences - a response

Published in Criminal Law & Justice Weekly, Vol. 175, December 3 2011, p 721

Recently in CL&J (p.596, ante), Caron Thatcher and Emmanouela Mylonaki of London South Bank University considered the sentences handed out following the August riots in London and elsewhere. The theme of their article was that some of the sentences were disproportionately high, at least in the case of offences not involving violence. It seems to me, however, that there are indeed reasons particular to riots which do justify higher sentences than ordinary incidents of public disorder or theft.


Continue reading here.

Fair trials and the freedom of the press: when fundamental principles conflict

Published on Halsbury's Law Exchange here.

Two principles fundamental to English law are open justice and freedom of the press. The right of the public to know via the press who has been charged with what is one of the key features that distinguishes a free society from the sort of tyrannies where those deemed not to be on message politically disappear and are never heard from again.


Equally fundamental, however, is the right to a fair trial, which requires among other things that an accused is judged solely according to the evidence before the court, not the fevered imaginings of the more populist elements of the press.

One very recent manifestation of that inherent conflict concerned a blog by a well-known political commentator about the Stephen Lawrence murder trial. The blog has been referred to the Attorney-General for consideration for prosecution for contempt of court. As the trial is still in progress nothing more will be said about it.

A recent occasion on which the courts had to consider the same issue, however, was the case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug), which arose out of the murder of Joanna Yeats at the end of 2010.

Police attention was initiallyfocused on Miss Yeats’ landlord, who was arrested but released without charge. Before suspicion had been lifted however, some elements of the press printed all manner of lurid allegations about him. In the event those mattered not, since the real murderer did not dispute the fact of having killed Miss Yeats. It was held however that if the landlord had faced prosecution, he would have been able to raise a serious argument that he could not receive a fair trial because of this adverse publicity. Even though the argument would probably have failed, it would have been properly made and therefore would have incurred tangible costs and delays to the trial process, and a possible ground of appeal.

Accordingly, even the most robust defenders of freedom of speech would have to concede some limitations on the right of the press to influence an extant trial.

The Yeats decision raised some important points about the present state of the law, and points for reform. What it did not consider, however, was the possible influence – not for the good – of the internet. As I wrote in an article on the case for Criminal Law & Justice Weekly, one of the central planks of the publishers’ defence was that the articles would have faded from the jurors’ memories by the time of the trial. But articles would still have been readily obtainable online.

Moreover, no prosecution for contempt of court will be possible in the case of articles published overseas, although they may be readily accessible to British citizens. For the same reason I have always suspected that superinjunctions for privacy would be a flash in the pan, since anyone minded to do so could expose material which is the subject of an injunction with impunity if they were based outside the jurisdiction.

It can only be hoped that the fair trial process is not destroyed in that fashion. For all of the arguments in favour of free speech, one can find many instances of tabloid journalism grossly interfering with justice. One thinks of Hollywood circuses from the Fatty Arbuckle scandal of the 1920s (see New Law Journal [2011], vol 161, p 1150) to the OJ Simpson fiasco of more recent times: few would wish to see justice conducted – and corrupted – in the same manner in this country.

When the press oppress

I will be published in next week's Criminal Law & Justice Weekly on the case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug).  The citation for the article is Criminal Law & Justice Weekly, vol 175, 17 September 2011, p 591.

The opening two paragraphs are reproduced below, and the article will be accessible in due course on the CL&J website (link on the left hand side of the page):

Two principles fundamental to English law are open justice and freedom of the press. The right of the public to know via the press who has been charged with what is one of the key features that distinguishes a free society from the sort of tyrannies where those deemed not to be on message politically disappear and are never heard from again.


Equally fundamental, however, is the right to a fair trial, which requires among other things that an accused is judged solely according to the evidence before the court, not the fevered imaginings of the more populist elements of the press. Balancing the competing principles formed the basis of the recent case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug).

No freedom of speech

Published in Criminal Law & Justice Weekly, Vol 175, September 10, 2011, p 527

When discussing religion and the law in this journal and elsewhere, I have consistently argued for free speech and for a complete separation of church and state. The counterpoint that others have expressed is that religion has been subordinated to other rights such as gender and sexual orientation.


I would maintain that the approach I have advocated is equally applicable to defending religion. I have been asked for some examples in support of that proposition. One obvious one concerns the sad tale of Harry Hammond’s street protest in Bournemouth in October 2001. It also provides a classic illustration of freedom of speech in the context of religion.

Continue reading here

R (on the application of Bashir) v Independent Adjudicator: religion in prison

Co-written with Anne-Marie Forker, and published in Criminal Law & Justice Weekly, Vol 175, 18 June 2011, p 373

The relationship between religion and the law seems now to be a permanent feature of public life in the United Kingdom – to the point where it reminds one of the children’s story about the magic pudding which, no matter how often it is eaten, always reforms in order to be eaten again.


One recent serving of the pudding concerns the right to practice religion in prison, which was the subject of R (Bashir) v Independent Adjudicator [2011] EWHC 1108 (Admin).

The facts

The claimant was required to provide a urine sample for testing for the use of controlled drugs in accordance with the policy in relation to mandatory drug testing contained in Prison Service Order 3601. The basis for the test was a suspicion that he had taken controlled substances. He was offered water before providing the sample, but refused on the ground that he was a devout Muslim who was fasting prior to a court hearing, as part of his religious preparation for the event. As a result of refusing water he was unable to provide a sufficient sample. He was charged with failing to obey a lawful rule contrary to r 51(22) of the Prison Rules 1999. He was convicted by a prison adjudicator and a penalty of 14 days’ additional detention was imposed. The adjudicator held that the claimant was not fasting as part of either Ramadan or any other religious festival, and therefore requiring him to provide a sample had been “appropriate”. The claimant applied by way of judicial review to quash the adjudicator’s decision, contending that it breached his right to practice his religion under art 9 of the European Convention on Human Rights.

The High Court

Judge Pelling found that the adjudicator’s approach to art 9 had been wrong; the correct approach required three questions: (i) whether the claimant’s rights under art 9 were engaged; (ii) if so, whether there had been an interference with those rights; and (iii) if so, whether the interference was one that was both prescribed by law or necessary in the interests of public order, health or morals, and proportionate to the end pursued.

There was no real dispute both that art 9 was engaged and that there had been an interference with those rights. Accordingly question (iii) formed the nub of the substantive challenge. Moreover, since the drug testing was prescribed by law and at least one of the other aspects of art 9, the only aspect of (iii) that was in issue was whether it was proportionate to the end pursued.

Judge Pelling concluded that there had been no evidence before the adjudicator to suggest that it was proportionate to require all Muslim prisoners engaged in personal fasting to break that fast as and when required for the purposes of providing a sample regardless of the circumstances. The decision therefore had to be quashed.

Comment

We have no dispute with the judge’s approach to art 9. Rather, our difference is with the conclusion that the drug policy could potentially be a disproportionate interference with the claimant’s rights. While the state is obliged to allow religious beliefs and practices, it is not obliged to make exceptions to the general law based on someone's religious beliefs – provided, of course, that the general law is not aimed at discriminating against or suppressing particular religions.

If it could have made no difference either to the state or to any private individual (including other prisoners), then we would have no objection to the state accommodating religious practices for prisoners. But making exceptions to the disciplinary regime – of which drug testing is at the core – is as unworkable as it is unfair. If one has an exception due to a fast, then why not some other activity? And, to ensure non-discrimination, non-religious beliefs of any particular prisoner would also have to be accommodated.

Religious exemptions are found elsewhere in the criminal law, such as s 139 of the Criminal Justice Act 1988 and ss 3 and 4 of the Offensive Weapons Act 1996, which allow Sikhs to carry the Kirpan on religious grounds. Is permitting this not increasing the likelihood of harm to others, something the criminal law aims to reduce? We are not suggesting for a moment that Sikhs are more likely than other groups to use knives in a criminal fashion, but rather that increasing the quantity of knives being carried by any section of society in the general public increases the risk of harm to others. Practicing religion should be subject to the same standards as non-religious activities (see also p 124 ante).

Contrary to the tabloid view that equality is somehow harmful to religion, we believe that excluding religion from public life is actually the best protection for religion, because it ensures all religions are treated equally.

Necessity as a defence to murder

Published in Criminal Law and Justice Weekly, Vol. 175, 7 May 2011, p 270

Two media stories in 2010 of great human interest but with tragically different outcomes were those of the trapped miners in Chile and in New Zealand.  No insensitivity to the familes of the New Zealand mining disaster victims is intended hereby, but the possibility of men trapped in such a manner raises one of the classic problems of criminal law and jurisprudence, namely how far the rules of civilised society can apply in wholly exceptional circumstances. 

Suppose a group of people were trapped and could not be reached in time to prevent starvation without them resorting to cannibalism. That was the scenario envisaged by Lon Fuller in his classic essay “The Case of the Speluncean Explorers” (Harvard Law Review, Vol. 62, No. 4, p 616). Fuller's inspiration was, of course, one of the most infamous cases in English law, R v Dudley and Stephens [1881-85] All ER Rep 61, the case of the shipwrecked sailors killing and eating the luckless cabin boy.

In a recent review of the case (“Death on the High Seas” in Cases that Changed Our Lives, LexisNexis 2010), David Perry QC laments the modest standard of the legal reasoning in the case, which makes it surprising that it still remains authority for the principle that necessity is no defence to murder.  It is therefore worth questioning whether the principle is justifiable.

Mr Perry QC recounts the following hypothetical problem, like the case itself a ubiquitous feature of law and moral philosophy tutorials.  Suppose you are in charge of a set of railway points.  A train is coming down the line which is going to hit five people.  There is no time to stop the train or warn the people. The only option is to switch the points and send the train onto another line, where there is only one person.  Should you intervene and cause the death of the one in order to save the five?  Suppose the one is a woman and the five are all men. Does one invoke the “Birkenhead rule” and refuse to intervene?  What if the one is a child and the five all adults?

Or suppose you are a surgeon with five patients, each of whom requires a different organ transplant. No organs will be available in time.  But there is another patient who requires minor surgery of a different sort.  Do you take each of the necessary organs out of the one patient and thereby save the five?

Straw polls I have conducted always favour flicking the switch of the railway points, but never intervening as a surgeon.  And yet it is hard to see a moral distinction.

Both are distinct from the trapped miner/shipwrecked sailor dilemma, however, in that the trapped people all face death, rather than being in control of the lives of others.  How do they decide who lives?  Perhaps those with the lowest chance of survival should be sacrificed, but it would be perilous for the law to place a greater value on one life than another.  About the fairest solution would seem be to draw lots. 

It would be rare indeed for facts to be as cut and dried as in a tutorial (how could one ever prove the draw was conducted fairly?), although the law regularly has to deal with cases with no independent evidence, and the difficulty applies equally whether the defence of necessity is available or not. 

Should, therefore, the law regarding necessity be abolished, thus enabling one innocent person to kill another innocent person, if the alternative is both of them dying?  

With some diffidence, I suggest that it should not.  The present law might be imperfect, but there are still four safeguards against injustice.  The first is the Attorney-General’s discretion not to bring prosecutions even where there is strong prima facie evidence of an offence having been committed.  That is a fundamental principle of the criminal law.

The second is the admittedly rough sort of protection in the form of the jury system.  Someone attracting overwhelming public sympathy might expect that to be reflected in the jury’s decision. 

The third is what was actually employed in Dudley and Stephens, namely the flexibility in sentencing – though that is greatly reduced when the charge is one of murder. 

The fourth is the very rarely used Royal Prerogative of Mercy. 

It is true that in the case of a person considered morally innocent all but the first method might leave a lingering sense of injustice, but on the other hand for obvious reasons extending the categories of acceptable murder – which is what a defence of necessity amounts to – has to be a step taken with the utmost reluctance.  Ultimately, the injustice of a wrongful conviction can be at least partially redeemed, but the injustice of wrongfully permitting murder cannot. 

Prisoners' voting rights and Britain's relationship with Strasbourg

Published in Criminal Law & Justice Weekly, Vol 175, 9 April 2011, p 229

Frances Crook, the (superbly named) Director of the Howard League for Penal Reform, has argued passionately on prisoners’ voting rights and the European Court of Human Rights (the ECtHR) (CL&J Vol 175, p82). Both issues, still regularly appearing in headlines, deserve further comment.

Ms Crook describes the right to vote as “fundamental”, without defining the term. Yet no-one suggests that children or the clinically insane should have the franchise. "Fundamental", therefore, cannot mean "universal".

The rationale for withholding the vote from children or the insane is that both lack the intellectual maturity to make any meaningful contribution to the democratic process. One could anticipate a chaotic result from the aggregate of their votes. Further, children acquire the vote when they become adults (as would the mentally ill if cured), so it is wrong to consider them excluded as a class.

What then of prisoners? Obviously, commission of a crime does not of itself rob one of the intellectual capacity to vote. Nor is disenfranchisement a necessary component of imprisonment. We have moved on since the days in which prison constituted “civic death”. Moreover, allowing prisoners the vote would assist them in developing the notion of participating in society, a key step in rehabilitation.

As against that, prisoners already have the right to vote – before they choose to become criminals. They will regain the right once freed. To call them “vulnerable” as some have sits uneasily with the fact that many are imprisoned to protect the public. Rehabilitation may be the ideal outcome of prison, but there has to be some element of punishment as well.

The notion of the social contract entails accepting the protection and benefits conferred by the state, but in exchange for duties on the part of the citizen. Rights should not exist without responsibilities. Foremost among responsibilities is the criminal law. Having chosen to break that law, prisoners are on shaky grounds demanding the right to have a say in making it for everyone else.

Then there is the ECtHR’s compromise in Hirst, which precludes a blanket ban but not necessarily a more limited restriction (although the ECtHR has arguably gone further since). The main point, however, is that the issue of prisoners’ voting is far from clear cut. That being so, we come to the second question, namely whether Parliament or the ECtHR should ultimately decide.

Ms Crook argues “the law is the law”: Parliament agreed to the ECtHR’s jurisdiction and is therefore stuck with it. To pick or choose which rulings to follow would clearly breach the rule of law.

With this I agree, but that is not to deny that there are serious questions about the ECtHR. Its appointments process has been criticised as too political, with some judges insufficiently experienced and some not even fluent in the relevant languages. It is also a triumph of tokenism over logic that small political enclaves have equal representation with the likes of Germany and Britain.

The ECtHR was established to be a check on national governments. But what if the ECtHR itself starts exceeding its authority, or regularly produces decisions of unacceptably poor quality? It may become so aggressively expansionist – or simply incompetent – that the UK has to leave if it is unable to persuade fellow members of the need for reform. There is already cause for concern given that the ECtHR’s critics include someone of the reputation and standing of Lord Hoffmann. A “living instrument” the Convention might be, but it should not be a licence for the ECtHR to micromanage national legal systems.

Nevertheless, those are reasons for reform, not excuses to pick and choose which currently binding rulings to follow. The fact is that Britain has to accord the ECtHR’s decisions the authority conferred by the appropriate constitutional documents which it has willingly signed, unless and until it unsigns them.

This involves some niceties regarding the doctrine of Parliamentary supremacy. As with membership of the EU itself, the most satisfactory analysis would perhaps be to say that Parliament has, for the duration of Britain’s membership, delegated sovereignty to the necessary extent, or accepted a restriction on its own powers – although it still retains the power to withdraw at any time and reassert its former constitutional position.

Currently the Supreme Court is trying to resist another of the ECtHR’s decisions in the Horncastle case. It seems improbable that it will be in a better position to do so than Parliament, but it is another indication that the controversy over Britain’s relationship with Strasbourg is set to increase.

As divisive as the issues are, one can be against enfranchising prisoners but in favour of complying with the law as it presently stands. Equally, one can be in favour of allowing prisoners to vote and of demanding reform of the ECtHR – indeed, logic suggests that the ECtHR’s supporters should also be the strongest advocates for its reform.

Religion and the criminal law: disregarding the faith

Published in Criminal Law & Justice Weekly, Vol 175, 26 February 2011, p 124

Without question, religion and the law constitutes one of the most contentious issues in public debate in the present day. Criminal law is no exception, as illustrated by two high profile cases from 2010.

The first was that of Shamso Miah, who punched a member of the public over an argument as to their respective places in a bank queue. The victim suffered a fractured jaw, and Miah subsequently pleaded guilty to assault occasioning actual bodily harm. Miss Cherie Booth QC, sitting as a part-time judge, imposed a sentence of two years’ imprisonment, but proceeded to suspend the sentence on the basis that “[y]ou are a religious man and you know this is not acceptable behaviour.”

Miss Booth’s remarks were widely criticised at the time, and rightly so. They are illogical for a start: the fact that Miah knew his behaviour was wrong evidently did not stop him doing it. If anything, it should have been an aggravating factor, since it demonstrates he was able to assume full responsibility for his actions.

Moreover, belief in the concept of right and wrong is not the preserve of the religious. While the subject does not lend itself to brief summary, it can be observed that many great wrongs have been, and continue to be, committed in the name of religion. It is also true that many have been committed in the name of secular ideologies. The point is that making judgements about the relative merits of secular versus religious ideology or ethics is a philosophical minefield. It is no business of the courts, certainly not in straightforward criminal cases.

In any event, trying to adopt a religious exemption or mitigation for criminal conduct would be unworkable in a multi-faith (and perhaps predominately secular) society such as the United Kingdom. There are too many differing standards amongst too many faiths, never mind trying to define the concept of a religion to begin with.

It is true as a matter of historical observation that the common law and its values have a shared history with Christian ethics, and that the United Kingdom retains an established church. But the days of the common law being actively developed by religion have long passed, and the courts regularly reiterate (correctly) that they are a secular institution.

Judges should not, therefore, make any assumption about the character of defendants based on their apparent religious beliefs, and in the particular case Miah’s should have been of no mitigation or aggravation. The relevant factors were the same as any other defendant: prior convictions or absence thereof, and positive evidence of good or bad conduct.

Of course, good conduct may be motivated by religious belief, but that is neither here nor there. It is the conduct itself, not the informing belief, which constitutes the mitigating factor.

By the same reasoning, the religious beliefs of the victim are equally irrelevant, as should have been recognised in another highly publicised case, namely the attempted murder by Roshanara Choudhry of Stephen Timms MP.

According to the sentencing remarks, Choudhry had been indoctrinated into Islamic extremism, and stabbed Timms out of "revenge" for his having supported the Iraq War. The judge went on to contrast Choudhry's values unfavourably with Timms’ strong Christian values, and when describing the latter lauded the historical relationship between Christianity and the common law.

It was right to observe that Timms was an innocent victim and that Choudhry was acting out of wholly inexcusable motives. Yet the purpose of the sentencing exercise was only to ascertain two things: first, whether the victim contributed towards the offence, and secondly, what other aggravating or mitigating factors applied to the defendant. Having established that Timms did nothing to provoke the attack, his other characteristics should have fallen away. The law does not evaluate the worthiness of criminal victims: an attempted murder is just as objectionable whether the victim is a selfish non-contributor to society or a genial philanthropist.

As to Choudhry, her beliefs were correctly judged to have been of no exculpatory or mitigating value whatsoever. They were, however, a factor in determining future risk – if she had carried out the attack in pursuance of her ideology and had no remorse or regret, then she was presumably likely to do it again.

Occasionally it is suggested that the presence of many faiths in the United Kingdom should be reflected in public institutions and processes. On the contrary, a separation of church and state is the only way that all beliefs (including non-beliefs) can be treated the same. This poses no threat to the survival of religion – quite the opposite. It ensures that no particular faith gains the favour of the state. And in the context of the criminal law it ensures that everyone is protected – and prosecuted – equally.

R v Chaytor: expensive claims

Published in Criminal Law and Justice Weekly, vol 175, 5 February 2011, p 73

On 7 January, Mr David Chaytor became the first MP to be sentenced in relation to an offence committed in respect of parliamentary expenses. His guilty plea followed a preliminary ruling by the Supreme Court that the system of expenses did not attract parliamentary privilege (as established by art 9 of the Bill of Rights 1689), nor did Parliament itself have exclusive jurisdiction over the issue. The case is noteworthy, if primarily because of the high degree of public interest rather than any new legal principle.


Of the courts involved, it was the Court of Appeal who most invoked the spirit of Denning at the constitutional pulpit. It stated that parliamentary privilege was the “bedrock of our democracy”, and that the finest example of the principle in action was Leo Amery’s speech in the Commons in 1940. Following the severe military reverses of that year, Amery launched a direct attack on the incumbent Prime Minister, Neville Chamberlain, concluding with Cromwell's famous exhortation "in the name of God, go".

I would certainly agree with the Court of Appeal about the significance of Amery's speech. Had he made the same speech in most other countries, not to say Hitler's Reichstag, they would have been about the last words he ever spoke.

There was, incidentally, a tragic irony from Amery's personal point of view, as his elder son Jack went on to make pro-German broadcasts from Berlin on a similar line to those of William Joyce, whom I wrote about at vol 174, p 249. As with Joyce, he was executed for treason after the war. He also recommended PG Wodehouse to the Abwehr, which has led to some casting much harsher aspersions upon Wodehouse than I did in these pages (see vol 174, p 791).

Back to the Chaytor case. On appeal the Supreme Court reiterated the importance of art 9, perhaps with fewer rhetorical flourishes but with no lesser emphasis.

There is accordingly no doubting the importance of Parliament being a forum where everything is up for the most robust debate, even if outside the House it might carry legal consequences in libel or worse. To the extent that MPs might abuse that privilege, it is a matter for the House itself to control—usually in the form of the Speaker—with no recourse to the courts.

Moreover, parliamentary business extends beyond simply what is said in either House, and other activities may therefore attract the privilege defence. As Lord Phillips stated, the test is whether impugned actions fall within “parliamentary proceedings” because of their connection to the Houses and their committees, which in turn concerns the nature of that connection and any impact of a prosecution on the essential business of Parliament.

He went on to hold that expense claims failed that test and therefore did not attract privilege.

The second limb of the defence was based on the slightly archaic sounding “exclusive cognisance” of Parliament; in other words, whether Parliament alone had jurisdiction to deal with its own affairs.

As with art 9 the boundaries of the defence are imprecise, but Lord Phillips was clear that “the mere fact that a crime has been committed within these precincts [of Parliament] is no bar to the jurisdiction of the criminal courts”, and that Parliament itself had never challenged that proposition. Further, although a prosecution would ordinarily require the co-operation of Parliament, that was not essential.

Accordingly, the trial of Chaytor and the other defendants was allowed to continue. Of course that was the only acceptable result. Either the MPs took more than they were entitled to or they did not. It was crucial for that question to be decided in the ordinary courts, with the same rights and same procedures to which anyone else would be entitled. Nothing less would suffice for justice to be seen to be done, and for public confidence in the institution of Parliament to be restored. As Denning himself once put it (quoting Thomas Fuller):

“Be you never so high, the law is above you” (Gouriet v Union of Postal Workers [1977] 1 All ER 696 at 718).

That said, any wider constitutional significance of the case can be downplayed. Contrary to some published opinion, it says nothing about the relationship of the Supreme Court and Parliament. The Appellate Committee of the House of Lords would certainly have reached the same conclusion (as had the lower courts already), and moreover the actual trials will not take place in the Supreme Court itself but rather the Crown Court.

One final point. The last word on the affair will not be the preserve of the criminal courts, but rather the court of public opinion. MPs and everyone else involved in the system would do well to act accordingly.

Witchcraft during Wartime: the trial of Helen Duncan

Published in Criminal Law & Justice Weekly, (2011) Vol 175, No. 03, p 27. 

In earlier columns I have written about wartime cases to reflect on present-day problems. Such cases are often the most instructive, because it is during wartime that a legal system is under the greatest strain, and how it reacts to that strain says a great deal about the system. Previously I have considered cases where the law reached the right conclusion. This month, however, I am concerned with a case which should never have been brought at all: that of Helen Duncan, often (incorrectly) said to be the last person in Britain to be tried for witchcraft.


Duncan held herself out to be a spiritual medium. She received minor convictions for fraudulent activities relating to her "trade" before the Second World War, but acquired lasting fame during the conflict by telling one anguished person during a séance that her son’s ship, HMS Barham, had been sunk.

News of this revelation caused alarm in Whitehall. The Barham had indeed been lost, but the Navy had suppressed the information. The reason was that intelligence had revealed that the Germans did not know about the sinking, since the U-Boat commander responsible had been unsure. Several other capital ships had been lost around the same time, and news of the Barham’s loss would have been a severe blow to morale as well as a German propaganda victory. Fearing that Duncan had access to its secrets, therefore, the state decided to put her out of business.

After some impressive pre-internet legal research by the prosecution, Duncan was charged under s 4 of the Witchcraft Act 1735, concerning “fraudulent spiritual activity” (rather than witchcraft per se). The trial that followed veered towards farce, with a number of apparently respectable people prepared to testify that her powers were genuine, but with the judge prohibiting Duncan herself from “proving” her abilities in court. She was eventually convicted by a jury and imprisoned for nine months.

After the trial Churchill lambasted the case as “tomfoolery”, and it is hard to disagree. It seems absurd that the authorities thought Duncan either a genuine medium or privy to state secrets: the fact that she guessed that a ship during wartime had been sunk hardly constitutes proof of anything.

If Duncan had indeed improperly obtained state secrets, she should have been charged on those grounds accordingly. If that was the true reason for the trial, however, but the prosecution chose instead to prosecute her under the Witchcraft Act for its own convenience, then that looks like a misuse of the legal system.

The most persuasive ground for the law’s intervention was that Duncan was exploiting the vulnerable, and that argument of course applies to all others in her vocation. There is clearly some justification for the state prosecuting charlatans. Then again, if people derive comfort from falsity, why should others object? In a free society, if competent adults wish to pay for such “services” they should have the right to do so, both as an exercise of the right to freedom of contract and the right to freedom of religion.

On the other hand, trading standards usually require that vendors do not offer for sale something they know to be false, particularly when the prospective purchaser is likely to be vulnerable.

In the absence of blatant trickery, however, the question of proof in either direction is an interesting one; after all, a good many intelligent people seem to want to believe in the Loch Ness monster, and it is not as if the veracity of mainstream religion is any more open to scientific proof. In all seriousness, the state is generally best leaving such things to the marketplace of ideas.

At most, spiritual mediums and similar types should be the concern of trading standards rather than the criminal law. There may come a point where coercion or deception merits criminal proceedings, but existing laws against intimidation or fraud should suffice in those cases. Otherwise, commercial regulation rather than specific criminal offences should be the extent of the law’s intervention, the aim being to restrict misleading advertising or otherwise protect the vulnerable rather than shut down the business altogether.

The justification is that the state should adhere strictly to the separation of church and state. On the one hand, the state should not seek to outlaw peddlers of religion and spiritualism. On the other hand no funding or official sanction should be given for spiritual or religious activities, “mainstream” or otherwise. Rather, the state should concentrate on education, surely the consumers’ best weapon against snake oil salesmen of any kind.

Coda: Recently, supporters of Duncan campaigned to have her pardoned. They were unsuccessful, though their website seeks to assure everyone that Duncan's powers were genuine. Readers can judge that one for themselves.

An innocent abroad: the non-trial of P G Wodehouse

This article has been published in Criminal Law & Justice Weekly,Vol. 174, 18 December 2010, p 791

Having recounted two famous cases of wartime treason last month, a few words might be appropriate about a famous case of non-treason from the last war.  It involved one of England’s greatest ever authors and is a lesson in overreaction, though ultimately a correct case of legal inaction.

In early 1940, as Panzer divisions smashed through the low countries and into France, it need hardly be said that most of Britain would have followed the news with close attention, anxiety and horror.  Not so, it would appear, a 58 year old Englishman living in the south of France, where he had resided for tax reasons since 1934.  PG Wodehouse paid such little heed to world events that not even news of the atrocious events unfolding a few hundred miles away in the same country prompted him to flee before occupying German troops arrived.  Shortly after the Vichy regime was formed, Wodehouse found himself interned along with all other British nationals in France. 

In 1941, realising how naive and harmless he was, the Nazis let him go shortly before he was due to be released in any event (upon reaching the age of 60), but at the same time co-opted his naivety for some light hearted radio broadcasts to America, which was still a neutral party at the time. Wodehouse accepted because he wanted to show some gratitude for the correspondence he had received from American fans during his internment. 

To a modern audience, the broadcasts come across as politically irrelevant as they were irreverent; no more than light hearted Wodehousian banter about barren towns, inept guards and the probable need to take a letter of introduction if he finally got to see his wife again. To a wartime audience in Britain, however, they were nothing of the sort. Instead they were sufficiently offensive to have Wodehouse debated as a possible traitor in the House of Commons, and to have him specifically likened to Lord Haw Haw. 

A number of public figures and institutions joined the attack, including the author AA Milne.  Others came to Wodehouse’s defence, including George Orwell and Evelyn Waugh.  Thus arose perhaps the most surreal literary showdown in English history: the genial and unworldly Winnie the Pooh taking shots at the equally genial and unworldly Bertie Wooster, with Lord Sebastian Flyte and Winston Smith appearing for the defence. 

One supposes Bertie Wooster might have gone pheasant shooting with Flyte in the Hundred Acre Wood, though Smith would have been denied any comparable pleasures in 1984. 

In the event, no charges were ever brought and a consensus emerged that Wodehouse was wholly innocent.  The affair had a terrible irony, however, given that just about the only overt political reference in any of Wodehouse’s pre-war works was the character Roderick Spode, a direct satire of Oswald Mosley.  It left a sad legacy too: Wodehouse never returned to England. 

The story is a salutary reminder that one can go too far in the most worthy of causes.  Obviously it was right that people did not want to give Nazi Germany a crumb of comfort in 1941.  But, properly understood, Wodehouse’s broadcasts gave no such crumb, or even a speck.  Nor does that conclusion require hindsight, still less any Orwellian rewrite of history.  Anyone familiar with Wodehouse’s works – as most educated Englishmen were at the time – and the man himself, would have seen the innocent naivety for what it was. 

One finds some mild parallels today, without drawing too long a bow.  One recalls Paul Chambers’ tweet in frustration at thwarted weekend plans that he would blow up an airport. It seems absurd that anyone would think his post a serious statement of terrorist intent.  And yet Chambers found himself fined under the Communications Act 2003.  It is telling that there were much more severe crimes with which Chambers could and should have been charged (but wasn’t) had anyone actually taken him seriously. 

A second recent incident concerned Councillor Gareth Compton, who was incensed by the columnist Yasmin Alibhai-Brown’s statement that Western politicians had no moral right to object to the stoning of a woman in Iran.  Mr Compton tweeted that he wished someone would stone Alibhai-Brown to death instead.  He was promptly arrested for his trouble.   

Compton was released without charge, but it beggars belief that anyone would think he was actually advocating the act rather than making an attempt at sardonic humour.

Neither tweeter was particularly funny, still less Wodehousean.  But nor should they have attracted the attention of the police, any more than Wodehouse should have been pillared in public. Combating terrorism and maintaining community harmony requires acute judgement on the authorities’ part, and the ability to recognise real threats.  Equally it requires the ability to recognise blatant non-threats.  Retaining a sense of humour wouldn’t hurt in that regard. 

Abu Hamza's passport: be careful what you wish for

This article is to be published in Criminal Law & Justice Weekly (vol 174, 27 November 2010, p 249)


The radical Muslim cleric Abu Hamza has won his recent appeal against the attempt by British authorities to strip him of his passport. Having already lost his Egyptian nationality, he argued successfully that removing his British passport would render him stateless.

It seems rather incongruous that Hamza wanted a British passport at all, given his reported attitude towards the British state. He might remember the old adage about being careful what you wish for: the last person to engage in claiming a British passport then trying to bring about the downfall of the state was the rather colourful William Joyce, better known as the wartime traitor Lord Haw Haw.

Joyce was a member of several different British fascist political parties during the 1920s and 30s (they tended to splinter and reform in a manner similar to Monty Python’s Judean parties in Life of Brian). As war with Germany loomed, Joyce, fearing internment, applied successfully to renew his British passport in order to flee the country.

Upon arriving in Berlin he soon began broadcasting propaganda for Nazi radio. Throughout the war he taunted the British over the airways about the bombing of their cities and constantly urged them to surrender. In June 1945 he was captured and charged with three counts of High Treason.

There was one problem: Joyce was not actually British. He was born in America, of Irish descent. Two of the counts therefore fell away on the ground that as a foreign national he had not owed allegiance to the Crown.

Joyce was, however, convicted on the count relating to the period of his broadcasting in which he had held a valid British passport (which had lapsed in 1940). The courts reasoned that since he had enjoyed the protection that that document conferred, had used it to travel and could have used it in a neutral state, he owed reciprocal obligations to the Crown during the period of its validity, notwithstanding that he hadn’t strictly been entitled to it in the first place.

His conviction was not without controversy, but it is hard to see any moral objection. Joyce had deceived the British authorities into thinking he was a British citizen when it suited him. He should have realised that they might go along with that pretence when it suited them. He fully deserved to come unstuck on that one.

In the years since, Joyce’s apologists have suggested he was executed out of revenge, or prejudice against his Irish origins.

Revenge is a distasteful motive, although it is easy for those who did not live through the terror of the Blitz to say so. As to the second point, Joyce was an ardent unionist who claimed to have fled Ireland to escape assassination by the IRA, making him a curious candidate for martydom in the cause of Irish independence.

Once it had been established that Joyce owed allegiance to the Crown for a certain period, then it did not matter that his impugned acts had been committed outside the jurisdiction, in the light of a case from the previous war involving another famous traitor, Sir Roger Casement.

Casement’s history was if anything more colourful than Joyce’s. He had gained fame, and a knighthood, for exposing colonial depredations in Africa and South America. Upon returning to the UK, he aligned himself with the cause of Irish nationalism. During the Great War he attempted (without much success) to obtain material support from Germany for an Irish uprising. He was caught and charged with treason on his return to the UK.

Casement’s defence argued that all of his impugned acts had taken place on German soil. That was deemed irrelevant on the court’s interpretation of the Treason Act 1351, which defined treason as giving the King’s enemies “aid and comfort in the realm, or elsewhere”; “elsewhere” being defined as elsewhere than the jurisdiction.

That ruling was also not without controversy but, as with Joyce, the moral position seems clear, leaving aside the merits of Casement’s cause of Irish independence, the mitigation of his good work in Africa and the Americas, and the still unresolved “black diaries” controversy (wherein he was alleged to have been involved in what in modern terms would be called predatory sex tourism). Someone leaving the jurisdiction, plotting to overthrow the state and then returning should not expect the state to find itself powerless to respond.

Archbold 2010 notes that the law of treason seems to have fallen into disuse, with no prosecutions since Joyce’s time despite a number of apparently qualifying individuals. The authorities seem now to prefer other charges. The offence remains on the statute books, however, and if the likes of Hamza persist in their ways it might pay the CPS to reconsider its use. Nowadays inflammatory speech might find a defence based on Art 10 of the European Convention on Human Rights, but other treasonous activities such as raising funds to support Britain’s enemies would not.

Assisted Suicide again

This is an article co-written with Lynne Townley which has been published in Criminal Law & Justice Weekly, vol 174 (6 November 2010) p 695.

For the most obvious of reasons, assisted suicide constitutes one of the most emotive of all legal issues. It is no great surprise then that the issue still receives regular press attention and continues to evoke the strongest of opposing viewpoints.

On 3 September 2010, two people were arrested in relation to the suicide of a severely disabled 76 year old retired pensioner, Donald Sinclair, who suffered from a motor neurone disease. Mr Sinclair had travelled to Switzerland in order to die at Dignitas, a clinic for voluntary euthanasia.

The story recalled two of the most famous recent cases in English law, those of the terminally ill Diane Pretty and Debbie Purdy. Both suffered conditions similar to that of Mr Sinclair, and each brought legal proceedings because they wished to die in circumstances of their own choosing.

There are two formidable issues with which law makers in this area have to deal. The first is whether or not assisted suicide should be permitted at all. The second (assuming one believes it should be) is how to create a workable legal framework to allow it.

As to the first issue, a full consideration would easily fill many books, involving as it does competing moral, cultural and religious viewpoints. Some believe suicide is wrong whether assisted or unassisted. Even those in favour would concede the risk that an apparently voluntary assisted suicide might transpire to have been brought about by improper pressure. Others consider it an issue of personal autonomy, and that everyone has a right to end their lives in the circumstances of their own choosing. Then there is a logical point: it is generally accepted (and certainly is the law) that an adult of full mental capacity has the unfettered right to refuse medical treatment of any sort – even if they will die in very short order without it. If one has the right to refuse treatment despite the fact that certain death will follow, then it follows logically that they should also have the right to accept treatment with the same result.

One then turns to the second issue of devising a legal framework to permit assisted suicide. The Pretty and Purdy cases ([2002] 1 All ER 1 and [2009] 4 All ER 1147 respectively) examined the English legal situation in close detail. In an article for a recent LexisNexis publication, Cases that Changed Our Lives, one of the present authors reviewed both cases. The key point is that although it remains an offence under s 2(1) of the Suicide Act 1961 to assist or encourage the suicide of another (see also the amendment provided by s 2A, introduced in January 2010), it is a fundamental rule under English law that prosecutorial authorities have a discretion whether or not to bring a prosecution in any individual case, even when it seems clear that an offence has been committed; and in fact the prosecutors in England and Wales have exercised that discretion in some cases not to prosecute under s 2(1).

Following an extensive consultation procedure after Debbie Purdy’s case, the CPS issued guidelines in February 2010 on how that discretion would be exercised. Factors in favour of a prosecution include where the victim was under 18, or lacked the capacity to reach an informed decision, and where the suspect was not wholly motivated by compassion. Factors tending against prosecution include where the victim had reached a voluntary, clear, settled and informed decision, and the suspect was motivated wholly by compassion.

Inevitably, however, whilst those guidelines make the law much clearer, they have done nothing to foreclose the moral debate. The author Sir Terry Pratchett, who suffers from Alzheimer’s disease, has spoken in favour of a tribunal comprising suitably qualified people, which would assess anyone seeking an assisted death and judge whether they were in fact acting of their own volition with full mental capacity.

The prospect of such “death tribunals” can hardly be uncontroversial, but unless the terminally ill can obtain prior approval they will be left with the fear that caused Debby Purdy such distress: namely that their closest relatives might be prosecuted after the event. In those circumstances they may choose to end their own lives whilst they still retain the physical ability to do so – or they may wait and suffer the agonizing death that Diane Pretty endured because she did not receive the legal approbation which she sought.

It may therefore be that a tribunal is the least-worst option, but even its adoption would hardly end the practical difficulties. Would representation before the tribunal be publicly funded? Who else would be entitled to make representations? Would the tribunal’s decisions be judicially reviewable? How long would the decision-making process take (this would be particularly important in the case of sufferers of degenerative illnesses)?

An independent legal think-tank, Halsbury’s Law Exchange, is presently compiling a white paper on assisted suicide, and no doubt it will result in a much fuller discussion of the subject than has been possible here. It will not be short of material.

BBC v The Stig again

Published on Halsbury's Law Exchange here.


Judgment has now been handed down in the case of BBC v Harper Collins Publishers Ltd and others [2010] All ER (D) 08 (Oct). The case concerned an attempt by the BBC to prevent Mr Ben Collins from revealing publicly that he has played the part of ‘the Stig’, a character on the BBC’s highly successful television programme Top Gear. At the conclusion of the hearing the judge refused to grant the injunction, thus enabling publication and serialisation of Mr Collins’s autobiography.

As foreshadowed in the earlier piece on these pages, it is evident from the judgment that the reason that the BBC lost is that the information was already in the public domain, various newspapers having already identified Mr Collins in the role. Applying AG v Guardian Newspapers (No 2) [1988] 3 All ER 545, the fact that the information was no longer confidential was fatal to the BBC’s claim.

Being the application of existing authority, the case is not of any legal importance. It is worth responding, however, to misconceptions about the case which appeared on the Guardian’s Law Blog, written by Afua Hirsch, shortly after the hearing. Ms Hirsch first argued that the case was ‘one of lowest moments in the BBC’s record on press freedom’ and that the BBC applying for the injunction ‘undermines its role as a defender of free speech, a deeply unhelpful move at a time when libel and press freedom is under so much scrutiny and has finally caught the imagination of politicians who are generally hardwired to avoid such a complex and emotive issue’.

In fact the case had nothing whatsoever to do with free speech. Free speech concerns the right of the individual to say what he or she wishes without interference from the state on moral, religious or political grounds, or in other circumstances the state suppressing information which the public has or should have a right to know. In this case the BBC (which although a public body was acting as a private individual when contracting with Mr Collins’s service company and bringing the action) was only seeking to enforce the terms of a commercial bargain. It was no different from any other such commercial arrangement. Countless employees are bound by contract to keep sensitive information – be it fast food recipes, mechanical designs, or whatever. This case was no different. It certainly did not involve the state censoring anyone’s opinion or suppressing information of public importance.

As to the morality of the situation, it seems obvious that Mr Collins was in the wrong: he freely agreed with the BBC to keep the character’s identity a secret, then reneged on that agreement in the hope of selling his book. The chief reason he won the case was because the secret was already out, and the court was therefore not going to make an order which could not have any practical effect.

Ms Hirsch then called the exercise ‘an extravagant waste of licence-payers’ money’. But it was not disputed that Top Gear has been an extremely lucrative franchise for the BBC, sold and distributed in many countries around the world. Therefore, taking steps to preserve one of the features of the programme was not per se a waste of money, although it should be conceded that the chances of success seem to have been unlikely even without the benefit of hindsight, given the extent to which Mr Collins had already been named as the Stig by the media.

Ms Hirsch adds, without reference to evidence, that ‘there has been speculation that this legal battle is simply a proxy war for the real battle between the BBC and Murdoch’, before finishing with what constitutes an extraordinary remark from a qualified barrister, that injunctions are ‘a dirty weapon at the best of times’.

Certainly injunctions like any other legal remedy can be abused (though as shown the instant case is not an example of that), but injunctions are a central component of justice. Without them many legal rights would be rendered illusory, as unscrupulous defendants could remove assets and evidence from the jurisdiction long before trial.

Update: the UK Human Rights Blog has responded to this post here.