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.

Cross about work

The headline in today's Telegraph (10 March 2012) warns of an impending ECHR case in which the claimants want to establish the right to wear a cross at work, as a symbol of their religious faith.

A few questions:

- should the state have anything to do with workplace clothing regulations?

- if so, should it allow exemptions on health and safety grounds, or for any other reason?

- if so, who is going to decide what is a genuine symbol, or someone taking the mickey?

- what of religious institutions such as faith schools?

Assisted suicide again

For Halsbury's Law Exchange


UPDATE: see this morning's Telegraph for a potentially interesting development.


Recently Halsbury's Law Exchange (HLE) concluded its student competition by asking the five finalists to provide a video submission on whether or not assisted suicide should be legalized. The videos were all of a high standard and can be viewed on Youtube.

Predictably the videos proffer views as strongly expressed as they are disparate. The fact is that assisted suicide is an issue about which one cannot be uncontroversial. Either one believes that there are certain circumstances in which a person should be permitted to end his or her life, with assistance if necessary, or one does not. Either way, one will encounter passionate, articulate and determined opposition. There is no fence to sit upon.

Elsewhere on HLE an opinion piece by Jacqueline Laing was recently reproduced from the New Law Journal. It argued that assisted suicide equals institutionalised murder, nothing less, no exceptions. There has also been the policy paper for HLE prepared by John Cooper QC, which argues that the existing guidelines released by the Director of Public Prosecutions following the well known Purdy case (R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2009] 4 All ER 1147) are adequate even if they go further than was strictly required by the Purdy decision.

For a different perspective, the formidable Becker-Posner blog has recently posted on the issue (see here and here), both authors supporting some form of assisted suicide based on the rather different perspective of economists, as did the well-publicised paper prepared by Lord Falconer with the support of Dignity in Dying.

It seems to me that there are two broad questions. The first is whether any form of assisted suicide ought to be legal in the first place. This involves questions of philosophy and religion that have been debate more or less throughout recorded history without anything like a consensus emerging. If one answers in the affirmative, then the second question arises of how to devise a legal framework to allow it. This involves defining the permissible circumstances and providing a safeguard against abuse – and abuse in this context equals murder. The second question is almost as difficult as the first.

Needless to say, I cannot attempt a full exposition of either within a blog. For the former I would refer readers to the Philosopher's Brief, filed by a number of eminent United States' authors for a Supreme Court hearing in the 1990s. In common with them I believe that there are indeed circumstances in which assisted suicide one should be permitted.

The cornerstone of the philosophers' argument is the concept of individual autonomy (note that they had to structure their argument to constitute a legal submission in the context of the United States’ constitution rather than an abstract moral philosophy paper). To my mind, however, the key point is that one is already permitted to refuse medical treatment even when certain death will shortly follow - a transplant operation, for example, or taking some form of vital drug. There is something approaching a consensus that that rule is morally just. If, therefore, one may refuse medical intervention even though the consequence of refusal is virtually immediate death, then I would argue that it follows that in certain circumstances one ought to be able to accept treatment with the same result. This is the point that my co-author and I made when writing about the issue for Criminal Law & Justice Weekly in 2010.

The terminally ill Dianne Pretty faced a drawn out and excruciating death due to her degenerative illness. When the courts refused to accept that she might be assisted in suicide at a time and place of her choosing, she had no choice but to suffer precisely the ghastly death she had gone to court to avoid. I would not have wished to have been the one to deliver the news to Ms Pretty about the fate she was to endure. Rather less would I wish to receive the same news if I developed the same illness as Ms Pretty.

All that, however, is not to belittle in any way the strength of the opposing argument. The very idea of a medical professional assisting someone's life to end seems counter-intuitive, to say the least. But it seems to me that the strongest arguments against assisted suicide come when considering how an acceptable legal framework might be developed to permit it. It is not difficult to envisage circumstances whereby continuing to live in ghastly circumstances would be beyond the endurance of any of us. Indeed there is no need to imagine - Diane Pretty faced an actual example. But it is equally easy to imagine circumstances in which permission for assisted suicide might be abused: the aforementioned New Law Journal article does just that. If it transpires that the risks of abuse are too great, then even supporters of assisted dying would have to concede that it should not be permitted.

We must therefore address the second question identified above. Again, I would refer readers to Mr Cooper QC's policy paper for a detailed treatment of the development of how the law has developed to date and the Commission on Assisted Dying for a consideration of how it might be altered in the future.

I would note that while suicide was legalised in 1961, assisted suicide remains illegal. Nothing in the DPP guidelines on when prosecution will be undertaken changes that. While it is fundamental that the Attorney General retains the discretion whether or not to prosecute in any individual case, he and his subordinates have no power to impose a blanket decision never to prosecute. If it transpires that no prosecution ever takes place, despite prima facie evidence offences having been committed, then the DPP may well be found to have been acting unlawfully.

The risks that any legal framework must guard against are obvious. The very elderly or the terminally ill are ipso facto among the more vulnerable members of society. Ms Laing writes that:

“Once enshrined in law, the practice invariably involves a move towards the elimination of those who have not asked to be killed, those who are unwanted, those who are lonely and low-income (KNMG Dutch Physicians Guidelines, Position paper, 23 June 2011), and those whose deaths offer some advantage to third parties controlling the process. It does so because it involves a radically altered mindset.


Organs for transplant are an ongoing incentive for active euthanasia. So too is cost-saving, litigation and payout minimisation, bed clearing, medical research, improper individual concerns about inheritance and even political Malthusianism. In this environment, failures of transparency, ie lies and deception, are both pragmatic and inevitable.”

Can safeguards prevent abuse of this nature? I would observe that the law already has to frame questions of equal magnitude and difficulty elsewhere. Legalising suicide in the first place opens the door to possible abuse. Perhaps more pertinently, the law of self defence, or defence of another, allows what would otherwise be murder. Unlike assisted suicide, the state’s approval has to come after the fact, where the circumstances are harder to reconstruct and therefore the claim of a prospective defendant that he or she was indeed acting to save him or herself or another person is much harder to assess – leading to obvious potential for abuse. Yet no-one suggests that the defence should be removed, because it is a fundamental right to protect one’s life, even if that may entail ending the life of one’s assailant.

Or there is the emotive issue of abortion, with recent newspaper reports suggesting that there are cases of “gendercide” in this country, where some wish for cultural reasons to have sons rather than daughters. This, or any other form of abuse, has not (or not yet) led to a suggestion that abortion should never be allowed.

More detailed suggestions are made in the paper issued by Dignity in Dying. The paper can be accessed on their website. I would suggest that these should indeed be sufficient if rigorously policed and enforced, and preferable to the present situation where all seems to turn on the DPP’s interpretation of its own guidelines.

Not so free speech

For Halsbury's Law Exchange

No sooner had HLE published a post on the joke (in every sense) trial of Paul Chambers than another story appears which leaves one wondering how many in officialdom have even heard of free speech, let alone understood it.


According to this report in the Independent newspaper:

A teenager will appear in court after allegedly making comments on Facebook about the deaths of six soldiers in Afghanistan last week, police said.

Azhar Ahmed, 19, according to West Yorkshire Police, posted the comments on his profile page and has been charged with a racially aggravated public order offence, according to West Yorkshire Police.

A police spokesman said Ahmed, of Fir Avenue, Ravensthorpe, West Yorkshire, was bemoaning the level of attention the British soldiers who died in a bomb blast last week received compared to Afghan civilians who have died in the war.

The offending post has been uploaded by Spectator blogger Alex Massie here.

Leaving aside Ahmed’s fairly shaky grasp of the English language, his post might reasonably be described as offensive. It certainly does not express views I would share, though as it happens I think our stay in Afghanistan has probably outlived its usefulness.

Yet none of that is of any relevance. Ahmed’s published views might properly be called offensive, but if free speech is to mean anything at all, it has to include the freedom to offend. In a democracy, the view of the majority rarely needs defending. The majority has the power to vote away anything with which it disagrees (or disagrees sufficiently for someone to organise a political campaign). It is the ability to offend the majority, challenge the powerful and contest the status quo which needs defending.

It is hard to think of which is worse – prosecuting Paul Chambers because he made a joke, or Azhar Ahmed because he made a statement about the war in Afghanistan. Without dissolving into cliché, it might be observed that one of the key differences between our society and that of the Taliban is that the latter tends to execute anyone not on message politically or religiously. In Britain on the other hand free speech is one of the cornerstones of our society.

It is true that free speech has not always been as robustly defended in Britain as in the United States, but if it has come to prosecutions of inane facebook updates or tweets then we have reached the lowest point since the days of mediaeval persecution. (Incidentally our overworked criminal justice system will likely explode or implode as well.)

Of course there are limits to free speech – protecting intellectual property, or state secrets, or preventing harassment of another – but no sensible restrictions would include making jokes (which are painfully obviously jokes such as Chambers’) or remarks, offensive or otherwise, about the rights and wrongs of the actions of soldiers or the war in Afghanistan.

Extraordinarily basic introduction to free speech over. All that has been offered by way of explanation by the police (quoted by Alex Massie in the article linked above) is that Ahmed:

“... didn’t make his point very well and that is why he has landed himself in bother.”

Assuming the quote not to be severely out of context, it does not deserve a response. Instead I would direct the spokesperson to Art 10 of the European Convention on Human Rights, and the history in this country of Lollardism, the Reformation, Milton, JS Mill and much else besides. Alternatively, they could just recall the following quote attributed to Stephen Fry:

“So you’re offended. So f+++ing what?”

Cutting out the deadwood

For Halsbury's Law Exchange


Pub quizzes often include a round or two on old laws supposedly still in force – the likes of being able to drive livestock over London Bridge, or to have cakes and ale during exams, or whether the death penalty is still in force for arson in the Royal Docks. A number of future answers are about to be altered at the behest of the Law Commission, which has compiled a long list of statutory deadwood to be felled this summer by an axe in the form of the Statute Law (Repeals) Bill.

According to the Law Commission’s press release, the Bill

“... will repeal 817 whole Acts and part repeal 50 other Acts. The Bill covers a diverse range of subjects, from poor relief and lotteries to turnpikes and Indian railways. The earliest repeal is from around 1322 (Statutes of the Exchequer) and the latest is part of the Taxation (International and Other Provisions) Act 2010.”

The press release goes on to list much interesting historical doggerel due to be culled, including:

• An Act of 1856 passed to help imprisoned debtors secure their early release from prison

• A 1710 Act to raise coal duty to pay for 50 new churches in London

• 38 obsolete Acts relating to the various railway companies operating in British India and the wider East Indies

• 40 Acts relating to the City of Dublin and passed by the UK Parliament before Ireland was partitioned in 1921

• A 1696 Act to fund the rebuilding of St Paul’s Cathedral after the Great Fire of 1666

• An 1800 Act to hold a lottery to win the £30,000 Pigot Diamond

• 57 obsolete Acts to raise money for the parish poor, including a 1697 Act to run a workhouse in Exeter

• 295 obsolete railway Acts.

• 16 Acts passed between 1798 and 1828 to impose duty on every pint of ale, beer or porter brewed or sold in parts of Scotland

• A 1696 Turnpike Act to repair the roads between Reigate (Surrey) and Crawley (West Sussex)

The dilatoriness which seems to have accompanied the funding of St Paul’s Cathedral would probably not have surprised Sir Christopher Wren, since Parliament withheld half his salary for the project for 14 years in the hope of spurring him on. Meanwhile internet researches suggest that the Pigot diamond, named after the former governor of Madras (now Chennai) Lord Pigot (1719 – 1777), was reduced to powder on the orders of its owner Ali Pasha, thus rendering the 1800 Act a legal fiction. Nowadays it is not debtors so much as undeserving creditors (in the form of disgraced former bankers) who receive public opprobrium ...

One could go on. But there are two serious points to be made about long forgotten but still surviving legislation. The first is that it cannot be assumed that an Act of Parliament or any other legal rule has disappeared just because it has not been used for many decades or longer. By the 1950s, for example, the Court of Chivalry had not sat for two centuries, and most assumed it had ceased to exist. Yet it was revived in the celebrated case of Manchester Corporation v Manchester Palace of Varieties Ltd [1955] 1 All ER 387: since no case or legislation could be found which had formally abolished the court, it had to be extant.

An earlier and more dramatic example might be Ashford v Thornton (1818) 106 ER 149, where the defendant in a murder case managed to escape liability by invoking the ancient right of trial by battle. As with the Manchester Palace case, the right (to the mode of trial) had not been explicitly abolished by Parliament, and the court accordingly had no option but to rule that it was still available. The plaintiff, a slight chap unwilling to try his luck, declined to join battle, and so the defendant effectively escaped a murder charge.

More recently the Guardian newspaper managed to generate a headline for itself by dredging up before the courts the Treason Felony Act 1848, a remnant from the days of European revolutions which must have alarmed those in Westminster at the time. On the literal reading of s 3 of the Act it appeared that even a publication which called for peaceful overthrow of the monarchy might constitute a criminal act. The Guardian sought, amongst other things, an assurance from the Attorney-General that no prosecution would ensue if it printed some articles advocating Britain becoming a republic. When that was not forthcoming it brought judicial review proceedings, which ultimately made it to the House of Lords (R (on the application of Rusbridger and another) v Attorney General [2003] 3 All ER 784).

The law lords made it clear that the litigation had been a waste of time since no prosecution would ever have been brought, but the Guardian was able to point to the fact that s 3 had never been repealed despite everyone agreeing that it should have been.

It is therefore worth spring cleaning the statute book lest anyone try something similar.

The second reason is that it is a step in a direction the law has always wanted to head, but rarely ever does – simplification. It is pie in the sky to assume that the law will ever be comprehensible to anyone other than experienced professionals, but even they have their work cut out with a statute book that is overlong and clogged up with ancient sections that no-one ever reads and would have no relevance even if they did.

Periodically there are calls for a particular area of law (or even all the laws) to be codified, or better consolidated. Ironically in the days of Empire this is something that Britain usually did for the colonies, who therefore ended up with a better structured statute book than Britain ever managed for itself. For many reasons it is probably unlikely we will ever end up with much codification, but that does not mean that small steps to improvement along the lines of the Statute Law (Repeals) Bill are not worthwhile.

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.

Same-sex marriage again

For Halsbury's Law Exchange

Last year the Scottish government began a consultation process asking if marriage in Scotland should be allowed for gay people through a civil or religious ceremony. The strength of opposing feelings on the issue is hinted at by the fact that on Valentine’s Day more than 1,000 people marched through Edinburgh in favour of the idea, whereas last year a pressure group calling itself “Scotland For Marriage” held a rally outside the Scottish Parliament to protest against it.


The issue has also been debated recently in Australia. Meanwhile the Nigerian government has not simply banned same-sex marriage, it has actually made the idea a criminal offence, with a penalty of 14 years’ imprisonment for any person who enters into a same-sex marriage contract or civil union. Apparently even that law was thought insufficient, and a separate offence was therefore passed which made “witness[ing], abet[ting] or aid[ing] the solemnization of same-sex-marriage” punishable by up to 10 years’ imprisonment.

It remains the case in the United Kingdom under s 11(c) of the Matrimonial Causes Act 1973 that a marriage can be entered into only by a male and a female, but there have been significant developments over the past decade or so.

The first was the passage of the Human Rights Act 1998. Article 12 of the European Convention on Human Rights provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 12 does not settle the issue because the European Court of Human Rights has decided (in Schalk and Kopf v. Austria) that it is a matter for national authorities to decide whether to allow same-sex marriage. The court’s reasoning was based in part on the fact that there was no consensus across member states on the issue (some, such as Spain, already allow same-sex marriages, but others do not).

More significant in the UK was the passing of the Civil Partnership Act 2004, which allowed same-sex couples to enter into a union conferring the same legal rights as marriage in the area of wills, tax and so on. Interestingly, the right to enter into civil unions was restricted to same-sex couples, even though the form of partnership – legal rights with no religious implications – might equally appeal to some heterosexual couples.

The next step was the lifting the restriction on conducting civil partnerships on religious premises by an amendment to the Equality Act 2010 – though (at least at present) no religious institution can be compelled to conduct them.

The remaining question is of course the most emotive of all: whether same-sex marriage will be recognised in law, and if so, whether that step will be taken (and supported) by Parliament or by the courts.

It is next to impossible to imagine that the courts will find a right to same-sex marriage in any existing domestic statute, and given that the European Court of Human Rights explicitly refused to find such a right in the Convention, that option will not be taken by the domestic courts either. Even if the courts did take the step themselves, if Parliament disagreed it could either refuse to recognise the court’s ruling (if it came from Europe) or legislate to overrule it (if it came from a domestic court).

Realistically therefore the only way a change will come about will be by an amendment by Parliament to the 1973 Act. One would expect the robust debate in Scotland to be mirrored in the rest of the country before any such step is taken.

In previous articles on the subject I have suggested a possible solution along the lines of France, to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue.

The well known American lawyer Alan Dershowitz advanced a similar view a few years ago, going one step further by arguing that the state should only confer civil partnerships, and leave the dispensing of the word “marriage” to the free market.

Either solution would mean that religious groups would not consider marriage to be valid, other than as a legal nicety, unless their own blessing had been bestowed in accordance with their own tenets. Non-religious people would be happy as they would have the legal right to the word “marriage” without any religious connotation.

No doubt many will disagree, but in response I would simply say that removing state control of the issue would leave it to the marketplace of ideas.

Free speech and street preaching

Published on Halsbury's Law Exchange here

The limits of free speech and freedom of religion are presently on trial once again with the reported prosecution of a Christian street preacher, Michael Overd, in the Magistrates’ Court. The case arises out of threatening remarks Mr Overd allegedly made in public to a homosexual couple.


The trial brings to mind a similar prosecution from earlier this century, of the street preacher Harry Hammond. I wrote about the trial for Criminal Law & Justice Weekly (vol 175, September 10 2011, p 527), and this blog is substantially based on that article.

I am insufficiently familiar with the facts of the Overd case to comment on its merits, and to do so would be inappropriate before the conclusion of the trial in any event. My comments are therefore in relation to Hammond’s case only (which was on related but not identical issues), and are not to be taken as agitating for a verdict either way with Overd’s.

Hammond was an Evangelical Christian who had been a street preacher for 20 years. The Justices described him as “a sincere man with deeply held religious beliefs and a desire to convert others to his way of thinking.” During the summer of 2001 he had a large double sided sign made bearing the words: ‘Stop Immorality’, ‘Stop Homosexuality’ and ‘Stop Lesbianism’ on each side and attached to a pole.

Prior to 13 October 2001, Hammond had on at least one previous occasion preached whilst displaying the sign and had received a hostile reaction from members of the public, some of whom attempted to deface the sign and leading to one person trying to set it on fire.

During the afternoon of Saturday 13 October 2001, Hammond travelled by bus to Bournemouth to preach with the sign. During the bus journey he covered the sign with a black plastic bin liner as he believed the sign might cause a fracas if displayed inside the bus, because of the reaction he had previously received.

On arriving at Bournemouth town centre, he positioned himself in a pedestrianised area and began preaching, holding the sign upright so that it was clearly visible to passers-by.

A group of 30 to 40 people gathered around him, arguing and shouting; some people in the crowd were angry, others were aggressive or distressed; some threw soil at him and one person was hit over the head with the placard.

At one point someone tried to pull the placard away from Hammond, during which he fell backwards to the ground. He got up again and continued with his preaching displaying the sign, whereupon a member of the public poured water over his head.

The police arrived and asked him to take the sign down and leave the area. He refused. Despite the fact that he seems to have been more on the receiving end of the violence, Hammond was arrested and charged with an offence under s 5 of the Public Order Act 1986. He was convicted, and then appealed by way of case stated to the Divisional Court. Sadly he died before the appeal could be heard, but the court went ahead in any event.

The court ruled that it was necessary for the prosecution to prove that the sign which Hammond was displaying was threatening, abusive or insulting and that it was within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. It was a defence for Hammond to prove that, nevertheless, his conduct was reasonable.

The court concluded, not without hesitation, that the conviction should stand. It held that (i) the words on the sign were capable of being held to be insulting, not least because they appeared to relate homosexuality and lesbianism to immorality; and (ii), notwithstanding familiar free speech arguments advanced on Hammond’s behalf, it had been open to the Justices to find his conduct unreasonable.

Harry Hammond’s life and death therefore stand as part of the matrix of religion and the law, and freedom of expression generally.

Two things have been common to many cases in that matrix, including Hammond’s. First, they concern people expressing genuine and deeply held beliefs that until very recently represented mainstream opinion in this country.

Secondly, for those involving homosexuality at least, they involve the expression or manifestation of opinions that would never be tolerated if they concerned other minority traits such as race.

Thus arises the key question at the heart of liberal philosophy: how to tolerate intolerance. In the context of free speech I have long endorsed the analogy advanced by Judge Richard Posner with America’s cold war strategy. America’s front line against the USSR, he observed, was not the Potomac but the Elbe. It was hoped that any conflict would be safely away from American soil, meaning ground could be ceded here and there without threatening their core interests.

Similarly, advocates of free speech argue for a wider protection than that strictly necessary to preserve values such as open and free political discussion, artistic freedom and personal fulfillment. They spend their time defending often offensive, sadistic, sordid or nonsensical manifestations of speech. By doing so they calculate that speech that is merely offensive, or indeed simply not finding favour with the political agenda of the government of the day, is never threatened.

Peter Tatchell, the inveterate homosexual rights campaigner, advanced a similar view when commenting on Hammond’s case at the time of the original conviction:

“Criminalising prejudiced opinions is a step too far. Where do you draw the line between legitimate robust criticism and illegitimate rank prejudice? The only circumstance where there is a clearly valid case for limiting freedom of speech is when it involves inciting violence”

No-one would have known better than Mr Tatchell that only a few years before it would have been gay rights campaigners like himself who were getting assaulted in town squares by angry crowds.

He would also have known that it was hardly likely, to put it mildly, that any passer-by would suddenly undergo a radical and irreversible change in their beliefs simply after seeing and hearing the sermons of Mr Hammond. I have seen many a street preacher but never an audience for one.

As much as I deplore homophobia, I remain uneasy with Harry Hammond being made a criminal, for two reasons. First, he was expressing a political or religious or moral viewpoint, and freedom of speech, if it is to mean anything, has to include freedom to make offensive speech on such issues (no-one is likely to complain about inoffensive speech, which accordingly is unlikely to have its freedom curtailed). The proper response for anyone who disagreed was more speech, pointing out the flaws in his arguments.

Secondly, Mr Hammond by all accounts was otherwise a law abiding citizen, who simply outlived the mores of his time. I doubt all of us will be wholly immune from the same fate.

Dr Jeffrey John: religious office and employment discrimination

Published on Halsbury's Law exchange here.

Religion, equality and the law has formed the subject of many blogs on this site in the past year or so. Once again the media have found a dispute which requires balancing the competing rights. It concerns Canon Jeffrey John, who has allegedly been passed over for promotion in the Church of England because of his homosexuality. According to the Guardian:

"Dr Jeffrey John … a celibate priest who is in a longstanding civil partnership with another cleric – was prevented from becoming the bishop of Southwark after the archbishops of Canterbury and York stepped in.

Reports on Sunday suggested John had become so exasperated at his treatment that he had hired… an employment and discrimination law specialist… to fight his case under equality law."

Although the competing considerations are many, the nub of the issue can be stated simply. As a starting point, everyone has the right to practice his or her religion. Everyone also has the right to do as they please with their own premises. Employers may choose whomsoever they wish for their staff.

As against that, everyone has the right not to be discriminated against on the basis of race, gender or sexual orientation.

The question is how to balance those rights when they conflict. On one hand, if a religious employer wants all members of her or his staff to be practising members of the religion, one might say that no outsider has the right to object. If the religion in question has particular moral tenets (and all do, almost by definition), then its followers would be expected to conform with them.

On the other hand, no non-religious employer would be allowed to implement an unlawfully discriminatory employment policy on the ground of a secular moral code. For example, a law firm specialising in criminal law could not insist on recruiting only male solicitors because the crusty old partners took the view that criminal law was “not a job for ladies” (as I once heard an elderly Rumpolesque barrister opine, not so many years ago).

So does the Church’s right to run itself according to its own tenets and beliefs trump Dr John’s right not to be discriminated against in his employment?

First we need to deal with a red herring, namely whether or not Dr John is actually an “employee”. It is no answer to try and be slippery about whether church office amounts to “employment”. Recently it has been held in a different context that the relationship between priest and bishop might be akin to employment (JGE v English Province of Our Lady of Charity and another [2011] All ER (D) 50 (Nov)). Either way, there is no doubting that but for the religious context there could be no evading anti-discrimination laws by the institution in question declaring that its office holders are not employees, any more than an employee could avoid income tax by using the word “subcontractor” instead of “employee” if there was no change to the underlying contractual arrangement.

It therefore has to be decided whether there is a valid distinction between Dr John’s case and that of the hypothetical female solicitor. In the US, the distinction would run on the following grounds: there is no link between being a lawyer and being a man. On no objective ground could it be justifiable to prefer men to women for the role of a solicitor. By contrast, the male-only priesthood is a manifestation of religious belief. Thus the hypothetical law firm would be engaged in discrimination pure and simple, whereas the church’s discrimination would be a consequence of its (religious) belief that the all-male priesthood derived from Christ’s choice of the apostles.

Some argue that there is nothing in Christian sources which supports a bar on homosexuals holding high office in the church. But that is not the point. It is not for the state to decide what a religion entails. Freedom of religion means freedom for religious organisations to decide for themselves what their belief system means. Moreover, the principle of separation of church and state (and for present purposes we can discount the establishment position of the Church of England) precludes the state from deciding otherwise.

That would be the result I would expect the English courts to reach, within the framework of the right to freedom of religion under Art 9 of the European Convention on Human Rights. As mentioned, it is also what the American courts have long held.

It is not, however, a foregone conclusion. The advancement of equality legislation renders it more and more difficult in this country to find exemptions from the general law on the ground of religion, as illustrated by the well-know recent cases about registrars refusing to conduct civil partnership ceremonies, employees wishing to display religious symbols, and fostering parents with strong religious views (though in a number of cases the tabloids predictably took the judgments to mean far more than they did in reality), on which I have written a number of blogs and articles in the past.

The reason I suspect equality legislation will not – and argue that it should not – be extended to the determination of the criteria of bishop or an equivalent post in other religions is that it would amount to the state rewriting religious tenets. In that scenario there would be very little left of religious freedom. It is true that the Supreme Court felt compelled to do something similar in respect of the well-known JFS case, in which it ended up effectively vetoing the Chief Rabbi’s definition of who was Jewish, so it is not beyond the realms of possibility that Canon John’s (presently hypothetical) case might produce a similar result.

But I suspect that the grey areas are likely to be confined to questions about what constitutes a religion, or which employees fall within the status of religious office holders and thus qualify for some sort of exemption from discrimination laws. (If the religion was some fringe cult, or the employee a support staff member not involved in dispensing any of the religious duties, then any religious exemption to discrimination law would be less defensible.) Neither would be in issue in any case brought by a CofE canon, since there is no dispute that a bishop is an ecclesiastical office in a recognised religion.

As ever, it is not a solution that will please everyone. But I very much doubt any solution will ...

Religion and the law in France

Hypocrite that I am, I renegged on my promise not to write to the Times anymore.  This letter was published on 9 January 2012

Mr Edward Carey (letter, 6 January) criticises France’s integration policy, and offers the burka ban as example of its flaws. It might be said that the problem in France is not the policy as such, but the failure to implement it. A glance at the ethnic ghettos in France and lack of minority representation amongst the French great and the good suggests that France might demand that immigrants become French but too often declines to treat them as such.

The burka ban was implemented not simply as part of a policy towards the immigrant community but rather the French concept of laïcité, or separation of church and state. I do not think the ban was a necessary consequence of laïcité, but nonetheless that concept if implemented consistently would apply equally to immigrants and indigenous alike, and would have avoided many of the disputes in Britain of the past few years about religious exemptions for minorities.

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. 

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.

Cricketing convictions

Published on Halsbury's Law Exchange here

Recently three Pakistani test cricketers, Salman Butt, Mohammad Asif and Mohammad Amir, were convicted of conspiracy to cheat at gambling and conspiracy to accept corrupt payments, arising out of Pakistan’s tour of England in 2010.  They were sentenced to 30 months, 12 months and 6 months’ imprisonment respectively (Amir having pleaded guilty).  Butt has recently lodged an appeal against sentence. Regrettably, although it is the first such prosecution in the UK, only a delusional optimist would assume it will be the last. It therefore falls to be considered whether the sentences were justified.

The convictions arose out of a sting by the News of the World newspaper in August 2010.  Cricket, being amenable to extensive statistical analysis, perhaps more than any other sport, lends itself to “spot betting”.  Aside from betting solely on the outcome, any number of bets on the procedure of the game are possible – how many boundaries will be hit during the course of the day; who will be the highest or lowest scorer in each innings; how many extras will be bowled and by whom; and so on – in other words, all the minutiae which fills many pages in Wisden Cricketers’ Almanack each year and considerable amounts of data on websites such as Cricinfo as well.

In turn the endless possibilities make it much easier for the unscrupulous bookmakers to try and rig bets.  It would be one thing – and hopefully a difficult one – to persuade an individual player to throw his wicket, still less an entire team to throw a match. Even if a team could be so persuaded, it would take some considerable effort to throw a match without arousing suspicion.  It would be much easier on the other hand to persuade someone not to score a boundary off a particular over in a test, which potentially can run to 450 overs, or to bowl a wide or no-ball off a particular delivery.  Such would usually – but not always, as we shall see – be inconsequential.

These possibilities gave rise to the three prosecutions.  The News of the World filmed a sports agent, Mazhar Majeed, counting bribe money and stating that Asif and Amir (both fast bowlers) would bowl no-balls at specified stages of the Lord’s test. In the event both did exactly as Majeed predicted.  They were not marginal no balls either: the television commentators expressed bewilderment at the extent to which Amir in particular had overstepped.

No balls are, of course, commonplace in cricket, particularly amongst fast bowlers, but the odds against predicting exactly when they will occur would be almost impossibly high.  Five hundred and forty balls will be delivered in the course of a normal day’s test cricket, and the only credible explanation of both players doing exactly as Majeed said they would is that they were indeed in his pocket.

It followed necessarily that Butt had colluded in the affair, because, as captain, he alone had the power to decide who would bowl and when. 

Initially cricket’s governing board, the ICC, conducted its own investigation, and went on to impose bans of ten years for Butt (of which five were suspended), seven years for Asif (of which two were suspended) and five years for Amir.  The criminal prosecution then followed.  (Majeed was also convicted after pleading guilty and received the longest sentence of all, but this article is confined to the cricketers themselves.)

The result of the ICC’s ban coupled with the sentences of imprisonment is likely to be the end of Butt’s career.  At the very least Asif’s will be seriously curtailed.  Only Amir, aged 19, seems likely to play again.
The question thus arises as to whether the offences justified penalties that are personally and professionally ruinous, along with the other consequences of imprisonment. 

The answer has to be a resounding yes, for two reasons.  The first is the recent history of corruption in cricket. The second is that despite some differing views, it seems to me unarguable that even the slightest spot fix seriously undermines the game. 

As to the first of those reasons, many cricketing correspondents have enjoyed displaying their historical knowledge by pointing out that cricket’s origins as an organised sport in something like its modern form lie in an excuse for gambling (see, for example, Reverend Pycroft’s The Cricketer’s Field, written in 1851). 
Corruption of the sort with which Pycroft was concerned had long died out by 1981 when inveterate horse racing fans Lillee and Marsh famously induced a frosty atmosphere into an already gloomy Australian dressing room by revealing a successful bet on England at 500-1 odds at Headingly.  That was properly seen as an innocent if very poorly judged act on the part of the two players.

Modern match fixing and spot-fixing began a few years after the surge in interest in cricket on the subcontinent which accompanied India’s victory in the limited overs World Cup in 1983. It reached world attention in the early 2000s when the-then South African captain, Hanse Cronje, was found to have accepted a string of payments for distorting matches.  Two senior Australian cricketers, Shane Warne and Mark Waugh, were also found to have had some contact with a bookmaker in the 1990s – most ill advisedly suppressed at the time by the Australian cricket authorities – although it was not suggested they had agreed to alter matches, only that they provided useful information about conditions and players. But it was clear that the involvement of bookmakers with cricketers could not be dismissed as occasional skullduggery on the subcontinent which the rest of the cricketing world could pretend to ignore. 

The ICC’s response included an inquiry by a former senior British police officer, Sir Paul Congdon, but although the issue drifted from headlines only the most hopeless optimist would ever have assumed that the problem had gone away. The true extent can of course never be known. But we now have judicial confirmation that it still very much exists, and constitutes the first reason why the courts have to respond with stiff sentences as a deterrent. 

The second reason is that even apparently insignificant actions such as a no-ball here and there can have a strong influence on the outcome of a match.  Not all have seen it that way: in the immediate aftermath of the match at Lord’s, a former President of MCC, Field Marshall Lord Brammall, struggled to see what the fuss was about.  On 31 August he wrote to the Telegraph in these terms:

“It was most regrettable that this incident was alleged to have happened in the fourth Test … Let no one, however, try, as I am afraid some have tried to do, to consider this a significant part of the game itself, impinging on the historical reputation of this test match.

The delivery of the odd obvious no-ball would not and did not change the course of the match or the outcome.”

Lord Brammall seems to have forgotten many a famous no-ball of test matches past. To take just one example (a genuine no ball in a series which has never had any suggestion of wrongdoing): in the fourth test of the 2005 Ashes series, Michael Vaughan was bowled early on by a no-ball; he went on to score 166, the highest score of the match, and thus the fact of Glenn McGrath overstepping had a considerable significance. 

But the point is wider than that.  As the judge inferred, if the fact of the Pakistani fixing has not cast a pall over every future international fixture, it will at least cause a question, or suspicion, to be raised every time something extraordinary appears to take place; and of course a central part of the enjoyment when watching sports is witnessing extraordinary events – the tragic dropped catch, the farcical run-out, the ill-judged moment after a day’s solid concentration, and so forth.  In those circumstances substantial terms of imprisonment were, rightly, inevitable.

Impossible to employ

Published on Halsbury's Law Exchange here.

Last week Stephen Levinson wrote about the law making process, and in particular the problems which bedevil the creation of employment law.


Mr Levinson identified four structural reasons behind the problems with employment law making: (i) responsibility for employment law is spread between four separate departments; (ii) civil servants continuously move between departments, denuding them of knowledge and experience; (iii) new statutes are almost invariably followed by statutory instrument after statutory instrument; and (iv) there is often inadequate consultation.

These are all valid points, and no doubt applicable to many other areas of law. I would venture to add two further points. The first is that much employment law is now made in Europe. Complex directives have to be transposed into national law. The last say on their interpretation is not that of the domestic courts but rather the European Courts. Whether they make good or bad decisions, the fact remains that the process by which employment laws are made, and by which answers to employment questions are reached, is rendered more complex, slow and expensive by an extra layer of regulation emanating from the European Union. For large companies able to retain expensive advice this may be manageable, if inefficient; for smaller firms it may be unmanageable and a disincentive to hire more staff. For both employers and employees it will make knowing their rights all the more difficult.

The second point is the most fundamental as well as the most obvious: it is policy that produces complexity. Employment law is overly complex because lawmakers are always tempted to try and micromanage employment relations. No doubt this is (usually) done with good intentions. One often hears employment rights being described as “fundamental”. In many instances I would not disagree – it is not as though anyone would or should advocate returning to a Victorianesque world of chimney sweep wages and conditions set entirely by the free market. I would however make three observations.

First, all employment rights, fundamental or otherwise, are wholly irrelevant to a substantial portion of workers, namely the self-employed. The likes of public holidays, sickness and maternity leave, the minimum wage, working time regulations and so forth mean nothing to the self-employed. Of course that does not undermine the need for protection of those who are employed from being exploited. But the more complex and costly it becomes to hire someone will, as mentioned, make employers more reluctant to hire new staff.

Secondly, complex provisions harm, not help, vulnerable workers. They will not be able to afford the increasingly expensive advice about their rights, nor will any employment litigation be resolved as quickly or efficiently as it might be otherwise. They will find it harder to obtain work because many employers cannot face the red tape and uncertainty that complex employment law brings and will decide against expansion accordingly.

Thirdly, it is not as simple for the state to play Robin Hood as some recent employment decisions seem to assume. For example, the European Courts ruled recently that employees who are sick during their holidays should be able to claim the time as sick leave, thus preserving their holidays. One can see the superficial attraction: if a certain amount of paid leave (holiday) is considered a “fundamental right”, then ensuring that employees retain the benefit that leave irrespective of the misfortune of illness is a logical step. However, a right can only exist if someone else assumes a corresponding duty, and in this case obviously the duty has to be that of the employer. The employer must therefore assume a greater duty.

The problem is of course that employment relations are not static. Employers can be expected to respond to the increased (but uncertain) costs that they will face by any or all of the following measures: negotiating lower wages, paying shareholders lower dividends, or raising prices. At least two of those will affect employees directly (with their own wages, plus the fact that, as consumers, they will have to pay higher prices that other companies impose in response to the ruling) and all three will as well in the case of employees who are also shareholders. It also gives dishonest employees an incentive to claim sickness at opportune moments in order to extend their holiday entitlement, which of course will be at the expense of the honest employees who will be left sharing the increased costs and also covering for the unscrupulous. Arguably, therefore, it would have been better for the state not to have intervened at all in that case.

As Mr Levinson concludes there is no silver bullet. But one does hope that his suggestion for greater thought to be given to the law making process is taken on board by the Cabinet Office. Improving employment law is a difficult task, but that makes it more, not less important.

The ties that bind us

Published on Halsbury's Law Exchange here

Prime Minister David Cameron made quite a few headlines with a passage in his recent speech to the Conservative Party Conference. Having stated that he was “consulting on gay marriage”, he went on to say:


"Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.”

Adam Wagner has a helpful post on the UK Human Rights Blog here. It is also a subject I have written on previously for HLE.

Mr Wagner’s post sets out the background. It seems to me that we have reached the point where Mr Cameron poses the question by having proceeded through three primary issues. The first issue was that the legal rights that marriage has long conferred, in the form of property, inheritance and so forth, were seen to discriminate against those who could not legally marry. The concept of civil partnerships was therefore created in order to provide same-sex couples with the same legal rights.

The second issue concerned the right of registrars to refuse to conduct civil partnerships on religious grounds. They were not permitted to refuse, though there may be more litigation to come on that point.

The third issue was whether religious premises should be permitted to host civil ceremonies. The law giving effect to this (s 202 of the Equality Act 2010) has not yet come into force.

We have therefore now reached, or are about to reach, the stage where civil partnerships have the same legal status of marriage; that no registrar can refuse to conduct them on religious grounds; and that religious groups may choose to host civil partnership ceremonies (but may not be forced to do so).

Two side issues arise. One is why civil partnerships have to be restricted to same-sex relationships akin to marriage: some siblings may choose to live together in a chase relationship all their lives, but they will not be permitted to enter into either a civil partnership or a marriage. The second concerns whether religious groups will always be able to refuse to conduct civil ceremonies on their premises. As enacted s 202 of the 2010 Act specifically provides that

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.”

but obviously enough there will remain the possibility of change in the future as some religious groups fear.

Leaving those issues aside, however, brings us to Mr Cameron’s urging of the final step, with the end of the ban on same-sex marriages.

The fact that civil partnerships have the same legal status in domestic law is not a complete answer. The word “marriage” carries a deeply and sincerely held meaning for many, and has an ancient pedigree. We should not lightly dismiss those who object to changing it.

On the other hand, the very fact that the word carries powerful connotations gives weight to the argument that it should not be denied to those who want it. Pink News makes both of those points:

Religious gay people want religious ceremonies – something the law does not currently allow. Others, who may be religious or secular, crave the gravity and recognition the word marriage offers.

There may be no difference in the rights and benefits received by those in civil partnerships, but to be married is to make a statement – to your partner, to your loved ones, to the world.

Additionally, some straight couples ... want their relationships recognised in law without what they see as the patriarchal, traditional overtones of marriage. There is discrimination here too, as legally, they cannot have a civil partnership.

Mr Wagner in the article linked aove quotes one of the opposing viewpoints:

The Scottish Catholic Church has said it will fight the proposal in Scotland, arguing that the government did not have a mandate to “reconstruct society on ideological grounds”.

Aside from the emotional, religious and sentimental implications of the word “marriage” (which as mentioned should not be underestimated), there is the question of overseas recognition of marriages. The British concept of civil partnerships will not necessarily be recognised by foreign states should a couple emigrate. Then again, simply giving homosexual couples the right to use the word “marriage” will not necessarily mean that their marriage would be recognised abroad, at least not universally.

Personally I would not object to the term being extended to allow same-sex marriages. In the past there have been taboos – primarily social but in certain countries at certain times also legal – on mixed race or mixed religious marriages. We in Britain in the present day rightly disdain such discrimination. Further liberalizing the term to allow same-sex marriages is not, in the present context, illogical or unfair: if anything it would be the opposite.

One objection always raised is that of the “slippery slope”; if we allow x then y and z will follow. That is never a sufficient argument of itself, however. Unless we ban everything or nothing we are always on a slippery slope of sorts. No doubt some will argue that allowing gay marriage axiomatically should allow any other form of relationship – siblings, polygamy, bestiality – to marry as well; but that no more follows than to say that if homosexual marriages are prohibited so should secular marriages.

But it is fair to say that the issue is far from straightforward. In turn that means that Mr Wagner is correct that this is a matter for Parliament, not the courts (whether in this country or in Strasbourg).

I would finally reiterate the suggestion I made in the article linked above, namely:


“… a more radical development might be considered, along the lines of France (if anything a more religious country than the UK), to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue. No legal requirements or restrictions would be involved. Then since the ceremony would be akin to a private party or religious observance: no-one would suggest the state has any right to superintend the guest list for, or any other aspect of, such occasions. Moreover, the service being offered by a religious institution would not be that of any celebration of any union; it would offer to give its own blessing in accordance with its own tenets. No-one should be entitled to compel a religion to alter its tenets."

Such a solution would mean that religious groups would not consider marriage to be valid, other than as a legal nicety, unless their own blessing had been bestowed in accordance with their own tenets. Non-religious people would be happy as they would have the legal right to the word “marriage” without any religious connotation.

It is never possible to please everyone, but it seems to me that the solution proffered would come the closest to doing so.

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).

English riots - appropriate sentences

A short comment on sentencing the rioters, published on Halsbury's Law Exchange 

Sentencing rioters will take place against a backdrop of public anger and media outrage. In any such instance it is important that the rule of law applies and the court is not swayed simply by the unpopularity of the offender or offenders before it. 

That said, two factors come into play as part of the application of the law. First, it is a normal part of the sentencing process to weigh aggravating and mitigating factors. In the case of the rioters, taking advantage of the police being overstretched will not tell in an offender's favour, though it might be a mitigating factor if one could argue that an offender was normally a law abiding person who acted spontaneously, rather than a career criminal. 

Secondly, deterrence is a legitimate sentencing objective, and discouraging the public from starting civil unrest or taking advantage of it for criminal purposes is a factor not present in ordinary theft cases. On that basis, rather than the more crude goal of retribution, longer sentences for rioters can arguably be justified. (Not that retribution is wholly irrelevant to sentencing.)

One other aspect that the rioters give rise to is the cost and other resources associated with a large increase in offenders.  It will be tempting for more lenient sentences to be passed, and a greater proportion to be non-custodial, simply on the basis that the country is struggling to accommodate prisoners as it is.  Of course in theory this should have no impact.  One wonders if it will be the same in practice.