Brewer v Mann: another vintage Bentley

No sooner had my earlier article on Old Number One Bentley been written than I had the pleasant surprise of reading about another mechanical survivor from the blood and thunder days of the Bentley Boys featuring in court. Once again the question of originality arose in the context of a classic Bentley whose purchaser alleged it was not the car they had thought it to be.


The case was brought by the ironically named Mercedes Brewer against the well-known vintage Bentley dealer Stanley Mann, his company and a finance company. Mrs Brewer, with the finance company’s help, paid £425,000 for a 1930 “Speed Six” model sold by Mr Mann.

After a year’s happy motoring Mrs Mann suddenly stopped paying the hire instalments. She contacted an auction house, who said that the car was unworthy of the description “Speed Six”, because that applied to a particular type of engine which had only been added to her car during a later restoration. Meanwhile, the finance company had repossessed the car and sold it back to Mr Mann for the same price as Mrs Brewer had paid. Mr Mann then restored it further and sold it on for some £675,000.

At that point, one might have assumed, there would be no dispute – Mrs Brewer had disposed of the car, the finance company had got its money back and Mr Mann had made a profit. Yet the first two were still unhappy: Mrs Brewer felt she had been misled, while the finance company had incurred costs of about £61,000 in recovering and storing the car before Mr Mann bought it back. Mrs Brewer was first out of the blocks issuing proceedings.


Continue reading here or see the New Law Journal, vol 176, 6 & 13 April 2012, p 510. This article will also form part of my forthcoming book Law Stories.

Old Number One or New Number One?

I have been published in this week's New Law Journal, vol 162, 24 February 2012, p302, on the case of the vintage Bentley.

Botham and Lamb v Khan: Just not cricket

I will be published in this week's New Law Journal on the libel action brought by Ian Botham and Allan Lamb against Imran Khan. The citation will be NLJ vol 162, 13 January 2012, p 70. The article will become available on the NLJ website next week. 

The fugitive: Roman Polanski

I have been published in this week's New Law Journal (Vol 161, 9 December 2011, p1714) on the libel action of Roman Polanski from earlier this century. 

The delight of everyone

I have been published in the current issue of the New Law Journal, on Lord Denning's most perfectly crafted judgment.  It can be found online in the NLJ blog under The delight of everyone

Template for the pitfalls of fame: the Fatty Arbuckle scandal

I have been published in the New Law Journal Vol 161, 12 August 2011, p 1150 on the trials of Fatty Arbuckle.  It can be found here.

Vance v Judas Priest, or (Not) Breaking the Law

Published in the New Law Journal, Vol 161, 15 July 2011, p 994

Much of my youth was mis-spent listening to heavy metal bands from the 1970s and 80s. Since then I have found it amusing watching the genre go from being called a prime factor behind the decline of Western Civilisation to its saviour.

The redemption has come from a realisation that the bands, or the better ones at least, were actually proper musicians who played according to traditional methods, as opposed to manufactured pop or the sort of unmusical noise which finds favour amongst my teenage neighbours. And yet it was once a common contention that all the imagery around swords, sorcery, devils and the undead one finds throughout the metal canon constituted unmitigated evil, or at the very least was not suitable for children.

In 1990 that argument reached its zenith – or nadir – when the veteran British band Judas Priest were sued in the United States by the parents of one James Vance. The action followed an attempted double suicide by Vance and his friend Raymond Belknap. Belknap died but Vance survived with serious injuries (though he died three years later). Both had consumed marijuana and alcohol immediately prior to the incident, and had generally led troubled lives for many years. Despite that history Vance’s parents formed the view that the suicide attempt had resulted from the pair listening to the Priest album Stained Class. They issued proceedings against the band seeking damages accordingly.

The first hurdle that the plaintiffs faced was the robust protection of freedom of expression provided in the US by the First Amendment to the Constitution. The strategy they adopted was to argue that there had been “subliminal messages” on the album, which should not qualify for First Amendment protection because the recipient would be unaware of them: there would be no exchange of information or other functioning of the marketplace of ideas, nor expression of personal autonomy, nor any of the other principles of free speech as understood in American jurisprudence. At a preliminary hearing, that argument was accepted - not without some controversy - and the case proceeded to trial.

The plaintiffs’ burden remained formidable nevertheless. They had to establish that the band had deliberately placed a message on the record, which was inaudible (but still identifiable) and thus “subliminal”, and that the message had a direct, causative link to the suicide attempts.

The band members, who can be forgiven for not taking the writ entirely seriously initially, attended trial in a solemn manner, with their usual S&M-looking garb replaced by sober suits, offset slightly by the expansive hairstyles common to all metal bands of the time. They denied that any subliminal messages had been placed on the album. It was pointed out that any number of apparent phrases could be “heard” by playing the record – or any other record – backwards, and that most such “phrases” were as innocent as they were nonsensical.

The particular message alleged to be present by the plaintiffs was “do it”, which immediately raised the unanswered question “do what?” The band remarked that if they had been going to insert any such message, it would have been along the lines of “buy seven copies of this album” and not a commercially-detrimental injunction for fans to kill themselves.

The judge ultimately held that the claim failed due to lack of causation: the tragic actions of Vance and Belknap could compellingly be ascribed to other factors.

Justice was therefore done, although the judge’s prior holdings remain disquieting. They include the statement “the ‘Do It’s’ on the record were subliminal because they were only discernible after their location had been identified and after the sounds were isolated and amplified”. But, as one of the defence witnesses subsequently wrote (Dr T. Moore, “Scientific Consensus and Expert Testimony: Lessons from the Judas Priest Trial”, The Skeptical Inquirer, Vol 20.6, Nov/Dec 1996), something not consciously discernible is not necessarily unconsciously discernible either.

Dr Moore also pointed out that there is “no evidence whatsoever that subliminal directives can compel compliance”.

By allowing the case to proceed to trial, rather than dismissing it summarily, the judge allowed the junk science on which the plaintiffs’ assertions were based to gain the veneer of plausibility, or at the least the oxygen of publicity. The proceedings also left the band incurring significant and unrecoverable legal costs.

The plaintiffs’ lawyers were just as much to blame for advising their clients to bring an absurd case. They may as well have fashioned an ecclesiastical action on an image of Christ seen on a piece of chapati bread.

Predictably the publicity had some effect. Fellow British metal legend Ozzy Osborne also found himself sued in America over his record Suicide Solution, but the case failed because there were no detectable subliminal messages and the overt exhortations in the lyrics qualified for First Amendment protection.

Attention was granted to the INXS song Suicide Blonde, but the tune was exculpated because it referred to hair colour - somewhat ironic in view of Michael Hutchence’s subsequent death. Presumably however radio stations stopped playing the Billie Holiday classic Gloomy Sunday or the theme to M*A*S*H (Suicide is Painless) around the same time.

With original recordings now almost exclusively in the digital format one hopes we might now be spared “analysis” of supposedly hidden messages in tape distortion, feedback or “white noise”. But I suppose that would be to underestimate the human imagination ...

"... the greatest piece of judicial law reform in my time ..."

Published in the New Law Journal, Vol 161, 17 June 2011, p 854  lawbites
Lord Denning is perhaps the most famous twentieth century English judge. His fame derives from several sources: partly from the number of high profile cases on which he sat; partly from his preference for justice as he saw it over precedent; and partly due to his inquiry into the Profumo affair, which, he later recalled, produced his one and only best seller. (It was also known as the "raciest Blue Book ever", though presumably not in the face of much competition.)

Perhaps uniquely amongst common law judges, Denning is also famous because of his judgment-writing style. It certainly endeared him to generations of law students, though not all law teachers: a curmudgeonly sort at my alma mater used to sneer at Denning's "short sentences and simplistic reasoning".

Still, Denning's judgments could never be accused of lacking clarity, and his unarguably short sentences could be crafted with such skill that his judgments on occasion attained the status of works of literature, as any reader of Miller v Jackson [1977] 3 All ER 338 will attest.

Born in 1899, and a veteran of the Great War, Denning displayed the values of his generation more than once, but he could also be forward-looking, perhaps most notably when ruling on the right of a deserted wife to remain in the matrimonial home. His judgments in the fields of property and contract were less well known publicly, but equally controversial in the legal profession: another professor of mine once suggested Denning “never met a plaintiff he didn’t like” (presumably Mrs Miller excepted).

Somewhat surprisingly, however, what Denning called "the greatest piece of judicial law reform in my time" did not arise from casting aside the patriarchal shackles of outdated social mores. It did not even concern substantive law. Instead, it was the creation of the pre-trial remedy of the Mareva injunction, by which assets in the jurisdiction can be frozen before trial in order to prevent unscrupulous defendants from removing them and thereby rendering any litigation fruitless.

The origins of the remedy are found in Nippon Yusen Kaisha v Karageorgis and anor [1975] 3 All ER 282, a case heard a month before Mareva.

Recently Lord Neuberger complained, with some justification, about the length of modern judgments. He would certainly have had a point in comparison with the Nippon Yusen Kaisha case – the lead judgment was all of four paragraphs long. Denning observed that it “has never been the practice of the English courts to seize assets of a defendant in advance of judgment, or to restrain the disposal of them. ... We know, of course, that the practice on the continent of Europe is different.” He then opined that it was time to revise that practice, and went on to grant the order, pointing out that if the defendants had grounds to object they could always apply to discharge it.

It was considered afterwards that the judgment might be defective, since the court had not been referred to Lister v Stubbs [1886–90] All ER Rep 797, where it had been stated that there was no jurisdiction to grant such an injunction. Thus, on 23 June 1975, Mareva Compania Naviera SA applied for similar relief to Nippon Yusen Kaisha, and addressed the Lister v Stubbs point directly.

On that occasion the judgment ran to all of three pages. Denning dealt with the Lister point breezily. He referred to s 45 of the Supreme Court of Judicature (Consolidation) Act 1925, which provided that an injunction could be granted “in all cases in which it shall appear to the Court to be just or convenient …”, and pointed out that its predecessor section had been given a very wide interpretation in Beddow v Beddow (1878) 9 Ch D 89. As it was just and reasonable to grant the injunction, Denning did so.

Roskill LJ agreed that the remedy was justified. As to the legal novelty, he pointed out that the charterers could always apply to the court to discharge the injunction, and referred almost sheepishly to the terms of the charter as providing a means of distinguishing Lister v Stubbs “if necessary”. Ormrod LJ concurred but declined to write a separate judgment as the application was ex parte.

It has to be said that the grounds for distinguishing Lister seem rather shaky. But the commercial justifications were unanswerable, and the point was never appealed further. Instead Mareva injunctions became standard practice, and a few years later Parliament codified the practice in the Supreme Court Act 1981 (see Paul Lowenstein QC “As if by a side-wind ...” in Cases that Changed Our Lives, Lexisnexis 2010). The jurisdiction was subsequently extended to include orders of worldwide application, and even cases where there is no substantive claim in England. Renamed “freezing order” in CPR newspeak, the remedy continues to form a substantial part of the business of the Commercial Court.

Denning, aged 75 at the time, took advantage of the absence of any mandatory retirement date and continued to sit until the early 1980s. He died in March 1999 aged 100.

Counsel for Mareva, Bernard Rix, is now Rix LJ and a resident of Denning’s old haunt of the Court of Appeal. One imagines that the number of times he has had occasion to recall that day in June 1975 over the course of a long and distinguished career in commercial litigation must be very considerable indeed.

The Mabo litigation saga

Published in the New Law Journal vol 161, 29 April 2011, p 602

Prime Minister David Cameron recently attracted a few headlines when he suggested that “with so many of the problems of the world, we are responsible for their creation in the first place”. Needless to say, opinion was divided, both on the accuracy of his statement and the merits of him saying it whether true or not.

One thing Britain certainly did create, in 1788, was the modern state of Australia. At the time, it was considered that there were three ways in which title to land could be acquired: conquest, cession, and terra nullius - land with no human occupants. An inconvenience obviously arose for the last of those concepts if the land was bigger than first thought and it turned out that there were, after all, some people already living there. In response, a most offensive gloss was added by European lawyers to the effect that “primitive tribes” did not count, as they had no recognisable legal system. The Australian Aborigines found themselves labelled as such.

Lumped in with the same fate were the inhabitants of the tiny Murray Islands, three islands with a combined area of just nine square miles, situated in the Torres Strait (the sea between Australia and Papua New Guinea). The islanders were descendants of the Meriam people, whose ancestry long predates European settlements in the South Pacific. As the Australian colony grew, the colonial office in London and the fledgling local administration decided to extend the boundaries, and to that end the Murray Islands were declared annexed to the colony of Queensland in 1879.

The problem was that no one took the trouble to tell the locals about the annexation before the event. Just over half a century later, in 1936, one Eddie Mabo was born on Mer, the largest of the islands (pictured above). His was not an easy start in life. His mother died while he was in infancy. As a teenager he was exiled by the strict island council for a prank. He worked a few jobs before a stint as a gardener at James Cook University in Townsville. There he took exception to a conversation about ownership of land on the islands: as far as he was concerned his people, never having agreed otherwise, remained the rightful owners.

In 1981, Mabo addressed a conference at the University about the inheritance system on the islands, and thereafter a decade of litigation in his name began to determine the question of the ownership of the land. It was finally concluded in mid-1992 by the High Court of Australia (Mabo v State of Queensland (No 2) (1992) 175 CLR 1). The court declared that there was a system of native title (namely, interests and rights of indigenous inhabitants in land, under traditional laws and customs) recognised by the Islanders in 1879, which had not automatically been extinguished by the exercise of sovereignty by the Australian government (subject to certain exceptions). It was further declared that the traditional title had not been extinguished by subsequent legislation or executive act and could not be extinguished without the payment of compensation to the traditional titleholders. Further, the land was not Crown land within the meaning of the relevant Australian statute.

The effect of the ruling was emphatically to pour the doctrine of terra nullius with regard to the islands back into its bottle.

Not unusually for a cause célèbre, much of the reaction in the popular press combined hysteria with inaccuracy, but as things transpired the decision led neither to the extinction of private property rights as feared by some, nor to ultimate satisfaction of all Aboriginal claims as hoped by others. Subsequent cases fleshed out the caveats in the original judgment, including conditions for the establishment of native title and a reiteration that native title extinguished by a sovereign power could not later be revived, because thereafter only the sovereign power could create title.

Many Aboriginal claims have since been settled rather than proceeding through the courts, though of course the conduct of the negotiations would have been against the backdrop of the Mabo ruling. The importance of the case and the resultant vindication of Eddie Mabo's actions remain unquestioned (see Dr Kevin Lindgren QC, "Native Title in Australia" in Cases That Changed Our Lives, LexisNexis, 2010).

For Eddie Mabo himself, however, tragedy seemed to be present as much as triumph. He was denied permission by his own community to return to his dying father, on the basis that he was a trouble maker .... Then, with even crueller irony, he contracted cancer and died five months before the High Court gave the judgment for which his name will always remain legal shorthand.

So much for das Pathetisch-Erhabene. The native title doctrine has no relevance in England, but that does not mean Eddie Mabo's story should not be of interest to English lawyers. It was rather fatuous of Mr Cameron to lump the blame for present day Kashmir on the British: the governments of India and Pakistan are large and sophisticated entities who should not be excused blame for a situation that has been in their hands for decades.

By contrast, Eddie Mabo and his people, as we have seen, had their land taken by a decree of which they were not even told, and were not in the position of a sovereign state to do anything about it. A century of presumption by those who governed Australia did not alter the (im)morality of the situation. By 1992, of course, responsibility had long passed from Britain to the independent state of Australia, who at last set about righting the historical wrong.

The Reduced Law Dictionary, by Roderick Ramage

Published in the New Law Journal, vol 161, 11 March 2011, p 366

Readers of this journal have long been entertained by the “snippets” column, consisting of anecdotes and observations, each one exactly 101 words long, which one finds scattered across the pages from time to time. The author of these pieces is Mr Roderick Ramage.

Someone obviously jabbed Mr Ramage in the ribs recently and told him that he ought to compile a few of them into a book, for that is what he has now done. Naturally he has selected 101 of them. The reason for the fixation with the number 101 is explained at the start of the book, which I will leave readers to learn for themselves. He has given the collection the rather fetching title The Reduced Law Dictionary.

For some but not all of the snippets Mr Ramage has details of the sources at the back of the book. Most of his cited cases come with references too. The snippets themselves are drawn from a very wide range of subject areas, and form an entirely random collection accordingly. Some are succinct points of law, some rather jejune, some amuse, while others give cause for regret. For example, no. 43 tells us that an attempt was made by Parliament back in the 1930s to do something about the grey squirrel invasion, an effort which we can now say with hindsight was, sadly, largely futile. We also learn in no. 38 about elephant farming in Scotland ...

Other scattered historical gems include the "brickbat" of Norman French (Mr Ramage prefers "dog French") of no. 49, and an explanation of "deed poll" in no. 48.

Then there are the outright controversial. Number 92 rails against “Tesco Law”, the opening up of legal services to a much wider range of potential suppliers, including the eponymous supermarket chain. Mr Ramage thinks any such supplier will pay lip service to traditional professional standards but insists that “in reality ... directors will continue to perform their company law duty to maximise profits.”

Well in reality they probably will, but another feature of reality is that even in traditional firms nowadays Mr Ramage will find fewer colleagues suffused with the tradition of service than in his youth, and rather more that are suffused with the modern tradition of making money. The steady trail of downfallen greedy solicitors through the Solicitors’ Disciplinary Tribunal each year confirms as much. But Mr Ramage is right to draw attention to how the Solicitors’ Code of Conduct will be reconciled with directors’ duties that do not apply to a traditional solicitors’ partnership.

Rather more inflammatory is no. 82, where Mr Ramage tells us that attacks on the Archbishop of Canterbury’s well-known speech about some adoption of Sharia law being “inevitable” was all a misunderstanding; that the Archbishop was only advocating some private law arrangements which might be recognised along with other arbitration agreements.

In fact that was the one thing the Archbishop and his apologists conspicuously failed to understand, particularly when making the inapposite comparison with the Beth Din. It is a fundamental feature of the common law principle of freedom of contract that parties may resolve disputes in a method of their choosing – and if they choose a foreign system of law, recognition of the outcome involves no “accommodation” of that system within English law, still less a “parallel system”. Indeed, in the case of Jewish law procedures, they are expressly stated to be subject to the law of the land. The Archbishop would have done well also to have acknowledged the possibility of private forms of dispute resolution falling foul of English public policy and being unenforceable accordingly.

None of this, however, is necessarily a bad thing in the context of the book, which isn’t purporting to be a political tract or a serious legal textbook but rather an amusing potpourri, or an olla podrida as Francis Bennion used to call his column in Criminal Law & Justice Weekly. In that respect firing off provocative remarks here and there adds to the interest – as evidenced by the fact that I have just found rather more than 202 words to say about the 202 words of no’s 82 and 92.

Mr Ramage says that he started compiling the snippets as a means of light relief from his day job (he is a solicitor). He can take extra satisfaction from the fact that through the original column and now this book he has often provided light relief for the rest of us as well.

Negative returns: Mrs Gillick and the DHSS

Published in the New Law Journal, vol 161, 4 February 2011, p 178. 

On my first day as an aspiring litigator, a partner gave some advice: litigation always goes wrong. Perhaps there was some exaggeration, but it was a sound enough warning. After all, at least half of all litigants would probably agree.

Most often the negative consequences of losing a case are simply financial, but for others rather worse may come of it. Oscar Wilde sued the Marquess of Queensbury; not only did he lose, but he received a criminal prosecution for his trouble. A more tolerant age did not help Lord Browne of Madingley, who wanted to keep his former relationship’s details quiet. He started by insisting that deference be paid to his status as the senior businessman in the land and a peer of the realm - in contradistinction, he argued, to the lowly status of his erstwhile partner and the Sunday papers who wished to publish the story. He finished by being exposed as a liar and losing his business positions into the bargain, all for the sake of the most trivial and irrelevant personal details. Jonathan Aitken, meanwhile, fell on his own sword (of truth ...).

Perhaps, however, the most ironically self-destructive consequence of a failed case is when the unsuccessful litigant's name becomes immortalised as legal shorthand for the very thing he or she tried to prevent. One unfortunate Mr Scott, in the midst of the prudish Edwardian age, took exception to his wife highlighting his marital inadequacies, and sought to have any such evidence heard in private. The point was ultimately decided by the House of Lords against him, in what remains the leading authority on open justice today (Scott v Scott [1911-13] All ER Rep 1).

Suffering a similar fate in more recent times was Mrs Victoria Gillick. In 1980, the-then Department of Health and Social Security issued a policy which would have enabled children under the age of 16 to receive contraceptive advice and treatment without their parents’ knowledge, much less permission. Mrs Gillick, the mother of ten children including five daughters, was not having that. She brought proceedings seeking a declaration that the policy was unlawful. Famously, her case failed before the House of Lords. She was then left with having established a new principle regarding the circumstances in which children might consent to treatment without parental permission, known to the present day as "Gillick-competence".

As with many other legal tales it could all have turned out rather differently. The law lords’ decision was given by a majority of one. They held that while it would be unusual for a doctor to give the advice to a child under 16 without the consent of her parents, the parent’s right to decide effectively ended once the child had achieved sufficient understanding and intelligence to understand fully what was proposed.

That was a significant development from the previous doctrine, under which the concept of parental rights and control had ruled the roost.

Almost immediately the question arose as to whether the child’s right to accept treatment also carried with it the right to refuse treatment; the Court of Appeal in subsequent cases did not think so. It remains an interesting moral conundrum: should a child competent to understand treatment be dragged into an operating theatre against her wishes? A similar logical point arises with assisted suicide: if a person has the right to refuse to take a drug even if the consequences will be almost immediately fatal, do they also have the right to accept “treatment” in the form of a fatal drug?

The lasting significance of Gillick has been the shift from parental rights to the overarching principle of the “best interests of the child”. That was reflected in the Children Act 1989 and the accompanying Family Proceedings Rules 1991. One practical consequence has been the increased opportunity for children to participate in legal proceedings. In general it may now be said that once a child has developed a certain level of intelligence and maturity, the parents’ decision-making rights fall away, or at least are greatly diminished (see Janet Bazley QC and Stephen Jarmain “Gillick and the dwindling right of parental authority” in Cases that Changed Our Lives, LexisNexis 2010).

Mrs Gillick would not have been amused. Today she might be considered somewhat old fashioned, certainly in her view of sexual morality. Opinion columns confirm that the merits of that change in public morals remain as disputed as ever.

But Mrs Gillick was also old fashioned in another respect: she held principles that went beyond her immediate personal gratification, and was prepared to stand up when she saw public injustice. Perhaps most readers might bemoan the diminishing of that ethos, even if we may differ from Mrs Gillick over what in fact constitutes public injustice.

Judgment Matters

This article, jointly written with Alexander Horne, has been published in the New Law Journal, (16 December 2010, Vol 160, Issue 7446, p 1735) 

An issue that has been debated since before the inception of the UK Supreme Court is the form in which judgments are delivered. Any such debate needs to consider two fundamental questions: first, the purpose of the judgment, and secondly, the intended audience. This article is mainly concerned with the former.

Appellate judgments serve two primary purposes:

(i) to tell the parties who has won and why; and

(ii) to clarify the law.

It is our contention that both objectives may be adversely affected in part by longer judgments, but more often—and more severely—by multiple judgments being issued with no clear ratio.

Individual judgments have lengthened at all levels in the past few decades, at least in courts of record, as the volumes of the law reports confirm. We suspect several factors are responsible.

First, the statute book has grown substantially in size and complexity in the past decade and a half, and one would expect the length of judgments dealing with statutes to correspond.

Second, from about the 1980s what judges occasionally refer to as the (self explanatory) “photocopying disease” took hold amongst counsel, later supplemented by its variant strain of the “cut-and-paste disease”.

Third, the growth of specialist report series made many more authorities available.

Fourth, and perhaps most significantly, from about the mid-1990s judgments started to become available on the internet. Previously, most unreported judgments effectively vanished. With the internet—coupled with the growing number of specialist series—almost every judgment is now freely available to counsel.

Citation matters

As a result counsel feel able, and often obliged, to cite multiple authorities and judges, in turn, feel compelled to deal with all of them. This is perhaps more acute in the lower courts where a judge might wish, out of caution, to deal with every authority lest failure to do so results in an appeal. In a Guardian Law Blog of 2 September, Adam Wagner lent towards blaming judges for too many authorities being cited and discussed, on the ground that they have the final say as to what appears in a judgment. In our view the blame ought to be shared more equally as between Bench and Bar, at least with regard to courts other than the Supreme Court. If a judgment may be appealed then a judge may feel compelled to deal with each and every argument and authority offered by counsel, although to an extent it may vary according to the degree of familiarity of the judge with the subject matter.

Plurality judgments

A view of significant authority has recently been presented by Baroness Hale, in an interview for the United Kingdom Supreme Court blog. She commented on “plurality judgments”, by which she was referring to single judgments with multiple authors, noting that “the idea of plurality judgments as the norm is very radical” and that while “some of us are sympathetic to it” others in the Supreme Court were not.

Many of the objections to the introduction of plurality judgments can appear self indulgent and miss the point that multiple concurring judgments can run counter to the two primary purposes of judgments identified above. Far from clarifying the law, multiple judgments can result in further confusion if they do not contain a clear and agreed ratio.

As Baroness Hale went on to suggest, on an appellate tribunal some judges will usually have greater experience in some areas than others. It is indeed important that each judge makes an effort to understand the issues rather than automatically deferring to the one with the most experience in the area under consideration, but it does not follow that each is therefore required to give a reasoned opinion. This was never the practice of the House of Lords and has not been the practice of the Supreme Court to date.

Baroness Hale gave as an example R (on the application of E) v Office of the Schools Adjudicator (Governing Body of JFS and others, interested parties) (British Humanist Association and another intervening) [2010] 1 All ER 319, [2009] UKSC 15, a public law case, concerning the lawfulness of a school’s admissions policy. The legal question was a short one: whether the particular grounds for admission were racially or religiously defined (or as Baroness Hale put it, whether one can discriminate without meaning to). Despite the five different majority judgments the question was answered clearly enough.

This will not always be the case, however, particularly not in sophisticated commercial appeals, which might involve a multitude of issues on which judges might differ while agreeing on the result.

Generally, in the common law world, final courts of appeal have not as a uniform practice handed down a single judgment, one notable exception being the Privy Council. The approach adopted by the European Court of Justice and the European Court of Human Rights (delivering a single, composite, judgment reflecting an agreed position) may be one which the Supreme Court could follow. However, we would stress that the issue is not multiple judgments per se, but the lack of a single identifiable ratio.

One advantage of introducing plurality judgments is that it would ensure private debate between the judges hearing the case. The benefits of a round table discussion seem obvious, since, among other things, it would ensure that the judges had considered one another’s views on the case.

Diversity

Baroness Hale has frequently been a champion of a more diverse judiciary, partly on the grounds that this might allow for different perspectives on cases and avoid the problem of “groupthink”. To achieve such a benefit, it is essential for the judges concerned to deliberate and discuss the case together; otherwise the conclusions reached by these new, diverse, appointees could easily be relegated to a lone dissent or ignored by the other members of the panel.

Baroness Hale went on to say that she hoped it would never become the case that dissents were not permitted, or that a judge would be prevented from describing the facts in a different way or otherwise expressing his own viewpoint. In this respect, dissenting judgments are a red herring. By definition they do not affect the majority decision and therefore have little adverse effect on certainty in the law.

It may be that judges are simply not able to agree (or not within a reasonable time) on all points of the case. In those circumstances, rather than issue multiple judgments which concur in the result but not all of the reasoning, and thus leave the law in a state of flux, it is incumbent on the presiding judge to insist upon a majority decision. This could be done by each judge stating that he agrees with the majority and then going on to give separate reasons in the form of obiter dicta indications as to what they would have preferred to have formed the reasoning for the decision. Of course, that would be an imperfect form of compromise but it would also indicate strongly to the legislature that the law under consideration requires review.

Baroness Hale’s final remark concerned the fact that different readers such as academics and leading practitioners might prefer diverse opinions. This is true, but the advantages of multiple judgments in the form of alternative viewpoints on the law could still be retained even when insisting on a majority ratio for the decision. Academics would then be able to assess what the law presently is against what the other judges would have preferred it to be. Practitioners would be able to extract arguments for subsequent cases, but would not have to charge clients fees for sifting through multiple judgments to determine what they think the law is while adding caveats that it might not be.

Our proposal would not require any radical step or reform, only an insistence that what is already a common practice for the form of judgments becomes a mandatory one.

A model example

The recent case of Radmacher v Granatino [2010] All ER (D) 186 (Oct) provides a model example. Seven judges endorse the leading judgment, Lord Mance adds a separate concurrence while Baroness Hale herself dissents. Practitioners therefore have an indisputable majority ratio, while academics and law reformers have the benefit of the differing views of Lord Mance and Baroness Hale.

Baroness Hale was undoubtedly correct that “the law can never be as clear as people think it is”, but it should aim to be as clear as is practicable to achieve.

Postscript:

Since the above was first drafted, Baroness Hale has returned to the subject in a speech for the First Anniversary Seminar of the Supreme Court. She argues

“we should have a flexible approach in which each Justice is free to write but a climate of collegiality and co-operation in plurality judgments is encouraged. At the very least, however many judgments [there] are, there should never be any doubt about what has been decided and why”.

This accords precisely with what we have contended in this article.

A Victorian Murder-Mystery: the strange case of Daniel M’Naghten

Published in the New Law Journal 3 December 2010, p 1688


To date the only British Prime Minister to have been assassinated is the unfortunate Sir Spencer Perceval (1762-1812), and his place as a regular answer in pub quizzes across the land is thereby assured. No doubt there have been many other attempts, and indeed the total number of failed attempts can never be known.


One alleged attempt forms the background to one of the most famous cases in English legal history, that of Daniel M’Naghten, whose case has framed the legal test for insanity for over a century and a half. Every lawyer will have heard of the case and most will associate it with the legal test for insanity (see Jeremy Dein QC and Jo Sidhu, “Legal Insanity” in Cases that Changed Our Lives, LexisNexis 2010).

Not so many, however, would know that the factual background to the case involves a rather intriguing conspiracy theory.

For most of his life, in the early to mid-nineteenth century, M’Naghten lived largely anonymously as a wood-turner, although he had a few other interests as well. Among other things, he tried his hand at acting for three years, taught himself French, attended a debating society, travelled to France and attended anatomy classes at Glasgow University – all of which amount to fairly advanced pastimes for a Victorian artisan, one would have thought ... But inevitably much of the detail of his life is rather sketchy.

What we do know is that somewhere amongst those seemingly random activities he formed the view that the Tories had it in for him. He reported this concern to the police, and alleged that he was being tracked by “Tory spies”.

No one believed a word of it or otherwise paid him much attention at the time, but in January 1843 he took a step towards legal immortality when he shot and killed a civil servant, Edward Drummond. He made his one and only public statement on the affair in the Magistrates’ court the following day, in which he lumped the blame on the Tories for having “entirely destroyed my peace of mind” (a complaint which, fortunately, does not usually suffice to apportion blame for murder).

An improbably large sum of money for the day (£750) was found on him, and this was used to fund a formidable legal defence team, assembled with great speed. At trial the issue was the definition of legal insanity, and the ensuing holding still represents the single most important statement of that definition in English law.

M’Naghten’s name is accordingly still cited in the law reports more than a century and a half later. Yet it has left unresolved the question of the true purpose of his shooting Drummond that day. Why did he have such a large amount of money on him? Where did he get it from, given the generally modestly-lucrative nature of his legitimate occupation?

Most assume that M’Naghten had not intended to kill Drummond at all, but rather the Prime Minister of the day, Sir Robert Peel, and that the money was paid to him to carry out the hit. Perhaps, therefore, the conspiracy runs, M’Naghten wasn’t mad at all, but made up the vague ramblings about delusions in the hope of escaping the gallows (if so it wasn’t much mitigation, as he spent the rest of his life in a lunatic asylum).

As conspiracy theories go it seems plausible enough, at least on the basis that Drummond was hardly an obvious target for a political assassination. He had been a civil servant most of his life, and at the time was personal secretary to Peel. It was while en route from Peel’s house to Downing Street that he was shot by M’Naghten, so it is easy enough to believe M’Naghten thought he was killing Peel himself. After all, this was not the age of television and Peel’s appearance would therefore have been far less well known than that of any modern holder of the office.

Such is the conclusion of no less an authority than the Dictionary of National Biography. Even if one believes M’Naghten aimed at the wrong man, however, we are still left with some difficult and intriguing questions. First, who paid him the money? Someone or some people very wealthy, one assumes.

Secondly, what persuaded such wealthy benefactors to assume that M’Naghten was a suitable assassin? Did he have a proven record in the field that has been lost with time? If not, and indeed if he truly was insane, then he wasn’t much of a choice.

Thirdly, was the £750 paid in full and final settlement of M’Naghten’s services to be rendered? If so, then the backer(s) had to have been pretty confident that he was going to do as he agreed rather than scarper – and indeed that he would succeed in doing it.

Well, who knows. It is hardly the only famous Victorian murder mystery to remain unsolved, and indeed insoluble.

The Bribery Act 2010 - hoping against hope?

This article was published in the New Law Journal NLJ 2010 Vol 60, No 7441, p1572:

The Bribery Act 2010 received royal assent on 8 April. According to the Ministry of Justice, it will among other things “provide a more effective legal framework to combat bribery in the public or private sectors” and “help tackle the threat that bribery poses to economic progress and development around the world”.

It is fair to say that the old regime was a fractured state of affairs, and it is also fair to say that it didn't achieve very much. In 2007, for example, the US brought 69 cases relating to foreign bribery, Germany 43 and the UK none at all.

It can't be said, therefore, that there was no case for reform. If anything the surprise is the length of time reform has taken; it is not as if the previous government was reticent about altering the criminal law, in any other respect. The total number of pages in Halsbury's Statutes devoted to criminal law more than doubled between 1997 and 2010. That sort of increase is totally inconsistent with the rule of law, which requires, among other things, the law to be reasonably stable and knowable in advance.

Justified or not, it may be doubted whether the new Act will have the desired effect. The fact that the old law was in a slightly jaded state can scarcely be a complete explanation for the dearth of successful prosecutions. Perhaps the most famous, or rather infamous, case of a non-prosecution was the Al Yamamah investigation of the mid-2000s by the Serious Fraud Office (SFO).

Investigation

Readers may recall that the investigation concerned the sale of Eurofighter jets to Saudi Arabia. The director of the SFO formed the view that there had been fraud, and began an investigation accordingly. All proceeded as normal until BAE Systems plc (the Eurofighter's manufacturer) said that to comply with a notice for disclosure would impair relations between Britain and Saudi Arabia. That initially did not suffice to prevent the investigation, but in short order the Saudis upped the stakes. They made quite clear that unless the investigation was halted two things would follow: first, the Eurofighter deal (and presumably any future weapons purchase) would be called off; and secondly, cooperation in the “war on terror” would cease. In case anyone didn't get the hint, the implications of the second threat were spelt out—British lives on British streets would be put at risk. And just to make sure the right people heard, they made those threats directly to No. 10 Downing Street (not being convinced of the constitutional arrangement of the independence of the prosecution process in Britain).

By means of a “Shawcross exercise” the Attorney General (who superintends the Director as with every other prosecutorial authority) had solicited the views of the cabinet in relation to the implications for foreign relations and, given the unambiguous threat emanating from Riyadh, ultimately concluded that it was not in the public interest to continue with the investigation, much less prosecute anyone.

That decision was the subject of well-known judicial review proceedings (R (on the application of Corner House Research) v Director of the Serious Fraud Office [2008] 4 All ER 927), but despite the Divisional Court railing against what it saw as an abominable interference with the rule of law, on appeal the House of Lords gave the complaints short shrift. Distasteful as it all was, their lordships held, the decision of the Director was not unlawful by traditional judicial review criteria, and therefore could not be interfered with by the courts. He had been entitled to take into account the public interest, in particular the threat to British lives, and indeed could have reached no other decision in the circumstances of the case (see John Cooper QC, “The Day We Sold the Rule of Law”, in Cases that Changed Our Lives, LexisNexis 2010).

Standpoint

One can look at the Al Yamamah affair from several different angles: a supine capitulation in the face of a foreign threat (that would presumably have set Lord Palmerston spinning in his grave), or a correct utilitarian balancing of the public interest. Or an outrageous selling out of the rule of law versus a proper exercise of the discretion which the prosecuting authorities have always correctly possessed. One thing, however, seems clear beyond argument: no matter what the state of the bribery laws, the Attorney General (or his subordinates) will exercise the discretion not to prosecute when they conclude it is not in the UK's interest to do so. And when British lives are at stake they will inevitably follow that course.

It would therefore pay to bear in mind that although the bribery laws may have changed—the “war on terror” continues unabated; the state of the nation's finances has become worse; we are still committed to a costly and protracted armed struggle in Afghanistan; our planned weapons procurement programmes are in a shaky state; which means the defence industry is as well; and we are as dependent on foreign oil as ever. In those circumstances it seems most improbable that nothing resembling the Al Yamamah deal will happen again and, if it does, that it will be treated any differently.

It ain't over till it's over: Naomi Campbell

This article appears in the New Law Journal here.

Part of the role of a supermodel, one imagines, is the ability to generate headlines, and indeed as the cliché goes there is no such thing as bad publicity.

Naomi Campbell, however, one continues to imagine, might disagree on that last point, on the evidence of the past few years anyway. This year she has found herself in the law courts in the Hague, giving evidence in the trial of the alleged mass murderer Charles Taylor. She has, of course, already found her place in English legal history, through her famous privacy action against the Daily Mirror.

The Mirror was headed at the time by a young editor by the name of Piers Morgan, fully cognisant of the English tradition of press freedom and freedom of speech, and not shy about asserting it. Nor, one speculates, would Mr Morgan have been reluctant to weigh the increased revenue from the anticipated extra circulation against the likely cost of litigation.

It was Campbell’s action, more than any other, which established the existence of an actionable right to privacy (expressed in the House of Lords as a right of action in respect of “misuse of private information” —information in respect of which a person has a “reasonable expectation of privacy”). It remains the leading authority on the cause of action and the principle that the right to a private life under Art 8 of the European Convention on Human Rights and the right to freedom of expression under Art 10 are of equal weight, needing to be balanced according to the facts of each case.

Campbell the pioneer

Among the beneficiaries of her pioneering cause of action has been a farrago of footballers, entertainers and other “celebrities”. Thus far the most successful in terms of damages awarded has been Max Mosley, famous for his role in international motor racing and indeed for his parentage, both of which added a fair degree of spice to his activities which were the subject of a tabloid sting.

The balancing of the right to privacy and the right to freedom of expression forms one of the key debates in political, moral and legal philosophy. Part of that debate in the English context is the more established cause of action of libel, not without its share of recent controversy. The presence of Lord Neuberger as Master of the Rolls has already signalled a move towards freedom of expression and less in the way of privacy and libel, as shown for example in the withering condemnation by the Court of Appeal of Eady J’s judgment in British Chiropractic Association v Singh [2010] All ER (D) 08 (Apr). Eady J has also recently stepped down as the head libel judge, as previously reported in these pages.

Max Mosley: a case in point

Often one gets the impression that the excessively complex libel and privacy laws together with the usually salacious facts result in the court (and indeed observers of the court) not seeing the wood for the trees. Max Mosley is a case in point. What public interest was there in his antics with prostitutes? No doubt the antics did interest a segment of the public, but that’s not the same thing. The point is that, although it was outside his home and outwith his family, it was nonetheless a private sexual encounter. No-one else would agree to cameras in their bedroom without their consent and neither Mosley’s occupation nor the accident of his birth should make any difference. Campbell’s argument was on similar lines: she was receiving treatment akin to medical treatment, and ordinarily both the fact of one’s medical treatment and the content of that treatment itself would be considered private. Celebrities, however, always face a problem if the information is already in the public domain: no court is going to expend resources preventing publication of something already well known.

There were other important rulings in the Campbell litigation. The Court of Appeal considered also s 32 of the Data Protection Act 1998. It was held by the House of Lords in a subsequent hearing that Campbell’s success fee should be enforced notwithstanding the severity of the costs for the newspaper (see Heather Rogers QC “From Catwalk to Courtroom: Public Figure, Private Life” in Cases that Changed Our Lives, LexisNexis 2010). As to the parties involved, it would be fair to say that things have moved on. Photographed together on the red carpet for a charity event in February 2010, she and Morgan at least have put on the pretence of reconciliation.

It’s not over yet

And yet there remains a bizarre coda to the saga. It is nearly 10 years since the offending article was published, and the proceedings began. We have had full consideration by the domestic courts of the issues arising pursuant to Arts 8 and 10 of the Convention. Strikingly, however, the legal battle isn’t yet over. The Mirror’s appeal to the European Court of Human Rights remains outstanding. Judgment might appear before the end of this year. Whenever it does, one hopes therefore that the Strasbourg court might also find the time to say something about the right to a fair trial within a reasonable time under Art 6(1).

Chilcott again

The following article has been published in the New Law Journal, here (07 May 2010 Issue: Vol 160, Issue 7416): 

The Chilcott inquiry has now heard its two star witnesses, the Prime Minister and his predecessor, though we have not been promised a report before the end of this year. Already at least two questions of particular interest to lawyers have been raised, one procedural and one substantive.

The procedural issue is whether or not there should have been appointed counsel to the inquiry. Obviously it is right that the panel should be primarily composed of military and political experts. But I do not think it is merely pushing the profession’s barrel to suggest that the addition of senior counsel would have aided robust questioning of witnesses. For the inquiry to retain—or, more accurately, obtain—public confidence, raising issues will not suffice; the most rigorous cross examination of contentious points must be pursued. And that is the stock-in-trade of barristers.

The substantive question is the rather more nebulous issue of international law, and the rights and wrongs of the Iraq war thereunder.

International law

The international law question has already been authoritatively discussed in this journal, most recently by Professor Greer and Dr Tsagourias (NLJ 2010 p475) I would respectfully suggest that the comparison in their last paragraph between Iraq and Kosovo is the key point, and in fact renders much of the public debate on Iraq (and indeed the Chilcott inquiry itself) misplaced. The reason that Iraq remains in the public eye is not that there were no weapons of mass destruction (WMD), nor because there is doubt over the Prime Minister’s intentions, nor that the war was of doubtful international legality. It is because—and almost only because—the aftermath of the invasion was a fiasco.

It is worth remembering that the initial invasion in 2003 was an almost unprecedented military success. The coalition achieved its stated objective of deposing the Iraqi regime in a few short weeks, with minimal casualties. The problem is that that seems to have been about as far as the pre-invasion planning ever got. The infrastructure of the country was largely destroyed or disbanded and there was accordingly little to check—and everything to encourage—the insurgency that followed.

The occupying troops were too few in number, primarily trained to fight a conventional war rather than counter-insurgency, and constrained by rules of engagement that most certainly were not going to be observed in reciprocation by the insurgents. Readers will need no reminding of the blood that was shed thereafter, and even if some significant progress has been made since the US “surge”, the cost in money and lives has been severe and even the most optimistic commentators have ceased to speak in terms of ultimate victory. That is why the public continues to demand investigation and indeed recrimination, and every aspect of the political, military, constitutional and legal steps to war remain under scrutiny.

Suppose, however, that by whatever means Iraq had been transformed almost seamlessly after the invasion into a functioning democracy with a low crime rate, no insurgency to speak of and tangible respect for human rights. The politicians responsible would now be feted as great statesmen and women, and there is no chance whatsoever that seven years later there would be any inquiry pouring over the finer nuances of international law, the AG’s advice, and precisely who knew what and when regarding WMD.

The point can reiterated by returning to the Kosovo war of 1999. Public debate regarding that war ceased fairly shortly after the conclusion of combat operations. And yet, contrary to the statements by the executive at the time, there seems little doubt that the war was indeed illegal. The United Nations charter authorises military action with a Security Council resolution or in self-defence.

No prior Security Council resolution was ever obtained for the NATO intervention. NATO could not claim to be acting in self defence. Yugoslavia’s complaint at the International Court of Justice in April 1999, filed against 10 NATO members, foundered on the basis that Yugoslavia was not a member of the UN during the war. In 2000, however, the House of Commons Select Committee on Foreign Affairs found that the war was illegal, though it offered by way of mitigation the conclusion that: “NATO’s military action, if of dubious legality in the current state of international law, was justified on moral grounds.”

Morality

The morality of the Kosovo war probably remains a moot point, but it would certainly not be if the outcome of NATO’s actions had been bloodshed on the same scale as Iraq. The consensus in that case would be that the disaster was foreseeable all along and that the UK government had acted recklessly. Arguments about Serbian atrocities would have cut no ice: Milosovic’s crimes, though serious, were not in the same league as those of Saddam Hussein, and the removal of Saddam Hussein is no longer seen as a justification for Operation Telic.

It follows that the Chilcott inquiry should be concentrating almost all of its energies on the precise steps that were taken to plan for the aftermath of the removal of the Iraqi regime. It is unlikely that those responsible for the post-invasion planning will be held to account, legally or otherwise. More is the pity, for it is they who have the most to answer for.