The strange, slow death of the criminal courts charge

December 7 2015

The criminal courts charge is, or was, one of the less well thought-through criminal justice reforms of recent years. Since April this year, courts have had a duty under section 21A of the Prosecution of Offences Act 1985 to impose a fixed charge “in respect of relevant court costs” on those convicted of offences.

When I say “fixed”, I mean it: regulations set out in a table the amount courts must charge, regardless of the convicted defendant’s means. Notably, the charge for being found guilty after a trial (e.g. £520 for a minor offence in the Magistrates’ Court) was much more than for pleading guilty (£150)—a situation that risked pressurising poor defendants into pleading guilty solely to cut their losses. That’s obviously undesirable, and raises questions about the fairness of trials in our courts. For that reason among others the Commons Justice Committee last month recommended the early abolition of the charge. The new Lord Chancellor Michael Gove’s decision to do just that has been broadly and warmly welcomed.

But it’s an odd sort of “abolition”—for two reasons.

First, the regulations “abolishing” the charge don’t quite abolish it. The Justice Committee had said (para. 38 of its report)

the statutory provisions governing the charge, by requiring the Lord Chancellor to make provision for a charge rather than simply empowering him to do so … make it impossible to abolish it without primary legislation to repeal Part 2A of the Prosecution of Offences Act 1985. … Pending any such repeal a similar effect could be achieved by … replacing the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 with new regulations setting out radically reduced levels of charge …

I’m not sure it’s quite right to say the Act requires the Lord Chancellor to set amounts for the charge. But it certainly assumes he will. Section 21A(1) of the 1985 Act says a court

must … order a person convicted of an offence to pay a charge in respect of relevant court costs

and section 21C says

A charge ordered to be paid under section 21A must be of an amount specified by the Lord Chancellor by regulations.

So courts must impose these charges, by law; but they must do so in amounts set by the Lord Chancellor.

Repealing these provisions would have taken some Parliamentary time, and required a bill with its attendant debate; something ministers seem increasingly unkeen on. It’d also have been mildly embarrassing. To be fair to the government, it would have meant delay in ending the charge.

So Michael Gove’s lawyers have come up with a quick and dirty fix. The new regulations, by omitting the Schedule containing the table mentioned earlier, just delete the amount of any charge courts must impose. As of Christmas Eve, an Act of Parliament will still on its face require courts to impose charges; but it also requires them to do something impossible, since they “must” charge amounts that are no longer provided for. The charge will be like a buggy bit of code that forces a computer into a must/can’t, must/can’t loop. Judges and court legal advisers will have to patch the problem by forgetting about charges that can’t in practice be imposed.

Some have questioned whether Michael Gove actually has the legal power to do something as odd and messy as this. His department has drafted a memorandum explaining why it thinks he can (see para. 3.2; thanks to Rich Greenhill for drawing it to my attention). This is to ward off criticism from Parliament’s Joint Committee on Statutory Instruments or “JCSI”, which tells ministers off for any doubtful, unusual or unexpected use of legislative power.

Alternatively he could, as the Commons committee suggested, have reduced the charge in all cases to nothing. The disadvantage would have been that courts would have had to go through the farcical rigmarole of announcing and imposing a non-existent charge.

This, though, is not the only question about the charge’s odd death. There’s also a question about its timing. To understand it, we have to know some nerdy detail about how regulations are scrutinised by Parliament.

The amending regulations were made on December 2, laid before Parliament the following day, and come into force on Christmas Eve. The reason for that slight delay is something called the 21-day rule.

This is not a law, but a rule of Parliamentary practice according to which “negative resolution procedure” regulations like these (I’ll explain that another day) should generally be laid before Parliament, and sent to the JCSI, at least 21 days before they’re due to come into force. Michael Gove’s “abolition” regulations comply precisely with the 21-day rule, since they come into force on the 22nd day after they were laid before Parliament. Fine. Gove’s getting rid of this charge as soon as he can.

Except that he’s not. As I said, the 21-day rule is not law. Everyone expects government departments will have to breach it from time to time for various reasons, and in fact they often do. Here’s an example from earlier this year of DCLG explaining to the JCSI why some parking regulations had to breach it (see para. 3).

There would have been good reason for the Ministry of Justice to breach the 21-day rule: to spare from the criminal courts charge everyone convicted of an offence after the 2nd of December. If Michael Gove’s decided the charge is wrong, isn’t it wrong now? Yet today, courts were still imposing the charge. I saw several imposed at Westminister Magistrates’ Court.

The Ministry of Justice is at risk anyway of being told off by the JCSI for this odd use of powers. It should have gone in for a pound, and risked a telling-off for breach of the 21-day rule as well. Not that it was much of a risk. The charge will be so little lamented that I doubt there’d have been any fuss. For once, more ministerial high-handedness might have been welcome.

I don’t mind that the charge’s end is legally messy; but I do wonder why it’s not slightly quicker.

2015-12-07T20:51:20+00:00Tags: , , , |

Summary judgment: what the Supreme Court held in Sharland

October 14 2015

In Sharland v Sharland, the Supreme Court today granted the appeal of a woman who wanted to reopen her divorce settlement on the grounds of her husband’s fraud. Here’s my technical legal analysis, in a few words, of the precedent this case lays down to bind the courts in future.

RATIO—Where one of the parties to a divorce settlement was guilty of fraudulent non-disclosure, the court’s order should be set aside unless the fraudster proves it made no difference to the agreement and order. Fraud is distinguished from other material non-disclosure cases, where the burden of proving a “substantial difference” is on the aggrieved party as laid down in Livesey v Jenkins. (Lady Hale, with whom all six other Justices agreed, §§29-33);

OBITER—An application to set aside the order can and should be made to the family court rather than by way of appeal (Lady Hale, with whom all the Justices agreed, §42).

Here are explanations of the terms ratio, obiter and distinguished.

2015-10-14T14:26:08+00:00Tags: , , , |

Fraud unravels all: the Supreme Court divorce judgments in Sharland and Gohil

October 14 2015

The Supreme Court has today given two judgments (Sharland v Sharland, and Gohil v Gohil) about re-opening divorce settlements on the grounds of fraud. Sharland lays down a new test in cases involving fraud, which should mean more settlements are reopened in future.

Alison Sharland agreed a divorce settlement with her husband, who’d told the court he had no plans to float a company of which he owned about two-thirds. But then she realised that in truth, he was already preparing for an initial public offer—which made his shares more valuable than they’d seemed. The divorce judge found that he’d acted fraudulently, but refused to set aside the divorce settlement and hold a fresh hearing, because in fact the IPO had not gone ahead, and now seemed unlikely; so the court was unlikely to order a different settlement, after all. The Court of Appeal upheld that ruling (though Lord Justice Briggs dissented, saying in effect that “fraud unravels all”).

Varsha Gohil always thought her husband (who was a solicitor) was concealing his assets, but she reached a divorce settlement with him so as to achieve finality. Later, though, she went back to court alleging non-disclosure. Then her husband was charged with, and then convicted of, money laundering—and sentenced to ten years in prison. The judge set aside the divorce settlement, because he would probably have made a different order had he known of the fraud. But the Court of Appeal reversed this, saying the judge had applied the wrong approach, and relied on material obtained in the criminal case which (because of a separate Court of Appeal ruling) was not admissible evidence in the divorce.

The Supreme Court has allowed both women’s appeals today. In Sharland, in a unanimous judgment (all seven Justices agreeing with Lady Hale) the court held that Briggs LJ has been correct in the Court of Appeal. Fraud does indeed “unravel all”.

Where fraud is established, that in itself will normally mean a financial order on divorce should be set aside (paragraph 32 of the Sharland judgment). The only exception is where the fraudulent husband can satisfy the court that knowledge of the fraud would have made no difference either to his wife or the the court (para. 33).

This approach modifies the principles that apply in cases of innocent or negligent non-disclosure, laid down in the 1980s in Livesey v Jenkins. As Lady Hale said (§32),

a party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality.

She went on (§35)—

The wife was entitled to re-open the case, when she might seek to negotiate a new settlement or a rehearing of her claims when all the relevant facts were known. Thus, in my view, Briggs LJ was also correct in the third reason that he gave for allowing the appeal. The wife had been deprived of a full and fair hearing of her claims.

It’s actually in the Gohil judgment that Lord Neuberger explains most clearly the legal importance of Lady Hale’s approach in Sharland (see §44 of Gohil).

If there had been … non-disclosure, but it had been accidental or negligent, the wife would also have had to establish that the effect of the non-disclosure was such that the 2004 order was substantially different from the order which would have been made (or agreed) if the husband had afforded proper disclosure—see per Lord Brandon in Livesey v Jenkins [1985] AC 424, 445. However, as the non-disclosure alleged by the wife in this case is said to be intentional, then, if there was such non-disclosure, the 2004 order should be set aside, unless the husband could satisfy the court that the 2004 order would have been agreed and made in any event—see per Lady Hale in Sharland v Sharland [2015] UKSC 60, paras 29-33.

In Gohil (again a unanimous judgment, all the Justices agreeing with Lord Wilson) the court agreed that the divorce judge, Mr Justice Moylan, had applied a wrong test—based on the Ladd v Marshall criteria for bringing fresh evidence in appeal. But Lord Wilson went on (para. 25 of the judgment)—

Separately, however, the judge conducted the correct exercise and held that it yielded the same conclusion … Moylan J did conduct a full fact-finding hearing and did find as a fact, no doubt on the balance of probabilities, that the husband had been guilty of non-disclosure. He also found–as to which there could be no live dispute–that the non-disclosure was “material” …

That last finding was of course unnecessary, applying Lady Hale’s new Sharland approach in fraud cases.

Nor was the Moylan J’s ruling entirely dependent on the inadmissible criminal evidence (§42)—

I conclude that, even if he had referred only to the evidence admissible before him, Moylan J would still properly have found the husband to have been guilty of material non-disclosure in 2004; that his order dated 25 September 2012 should therefore be reinstated; and that the wife’s claim for further capital provision should therefore proceed before him.

An interesting additional point in the judgment relates to recital 14 to the consent order giving effect to the divorce settlement, which said—

And upon it being recorded that the petitioner [wife] believes that the first respondent [husband] has not provided full and frank disclosure of his financial circumstances (although this is disputed by the first respondent); but is compromising her claims in the terms set out in this consent order despite this, in order to achieve finality.

This was obviously included by the husband’s lawyers to try to protect him from any later “comeback” from Mrs Gohil, Lord Wilson said. But the husband had a duty to make full and frank disclosure to the court—a duty that the parties could not wish away by any agreement. Lord Wilson concluded that (§22)

In the present context, namely that of a financial order in divorce proceedings, a form of words such as recital 14 has no legal effect.

In terms of procedure, both judgments strongly suggest (Gohil, §18; Sharland, §42) that applications to reopen divorce settlements on grounds of fraud should be made to the family court, which has power to set aside its own financial orders—and not by appeal.

2015-10-14T14:34:33+00:00Tags: , , , |

Pannick on the Reyaad Khan drone strike

September 17 2015

In the Times today Lord Pannick QC discusses the recently announced RAF drone strike that killed Reyaad Khan and another British “Islamic State” fighter.

He agrees with me that article 51 of the UN Charter permits defence against an imminent attack from a non-state organisation. A state, he writes

does not have to wait for the attack before taking action. The legality of pre-emptive self-defence, where necessary and proportionate, is recognised by international law.

On whether this strike was in fact necessary and proportionate, he says that depends on the nature and imminence of the threat; and seems to accept that there are limits on what detail the government can disclose. He says:

On the publicly available information, it is impossible to dispute the advice given by the attorney-general that, in substantive terms, the drone strike was a lawful response to a grave terrorist threat.

He suggests two safeguards, though. First,

The rule of law requires, as a minimum, a public statement of the general criteria to be applied in deciding on drone strikes, and the procedure to be followed in making such decisions. The government needs to publish such guidelines without further delay …

This seems to be a reasonable idea, though I’m not sure drone strikes per se are really what need to be covered. The issue here, surely, is the targeting of lethal force on a specific individual by any means, where this is thought necessary for British self-defence outside an existing theatre of armed conflict. Not all drone strikes (since they may not involve the targeting of individuals at all), and not just drone strikes.

I’m more doubtful about Pannick’s second proposal. He writes—

There is a strong argument that the rule of law requires that before a drone strike designed to kill a terrorist target takes place, the necessity and proportionality must be approved not just by politicians and generals, but also by an independent judicial authority, albeit that such a review may need to occur in very urgent circumstances and so only limited scrutiny is possible.

First, I wonder why he thinks this applies in this sort of case and not to every choice of target by British forces, where people are likely to die—including civilians. Second, I wonder if it’s realistic. Whether a strike is proportionate depends on the extent of the risk to civilians, which is something that might have to be judged in a matter of a very few minutes.

Third, I wonder whether his idea would satisfy anyone, really. If people find it hard to trust the government on this without seeing all the Attorney General’s advice, why should they trust this judge without seeing his or her full on-the-spot ruling? Finally, I wonder if it’s even appropriate. Aren’t judgements like this—if and when military force should be used to defend us—what we have ministers and Prime Ministers for, rather than judges?

Stop the redestruction of Inner Temple Library!

September 16 2015

Photo published with permission of Inner Temple LibraryThe last time Inner Temple’s library was wrecked, it was Hitler’s bombs that did it. On the night of the 10th—11th of May 1941, London faced the most devastating attack of the Blitz. That night, the House of Commons chamber was left a smoking shell. St Clement’s Dane’s, on the Strand, was gutted. Much of Fleet Street was on fire. And according to Clare Rider,

Temple Church and almost everything in it, including stained glass, altar, reredos, organ, pews, books and pulpit, were devastated … fires raged through the Hall, Library, Master’s House, Crown Office Row and what remained of Harcourt Buildings.

… fires continued to burn throughout the following day. Only when they were finally extinguished could the extent of the damage to the Inner Temple buildings be assessed. It must have been a depressing sight.

After Hitler was dead, our civilisation and the rule of law saved, it was decided to build a new library

worthy of the site and the historical importance of the Inn

as Inner Temple put it in 1947. The new library, like all the reconstruction work, was funded mainly by the public through the War Damage Commission. Clare Rider tells us that

The Library was opened by the Treasurer, Sir Patrick Spence, in a formal ceremony on 21st April 1958 attended by the Lord Chancellor [David Maxwell Fyfe, Viscount Kilmuir—Carl]. The Law Times of 2nd May recorded that ‘those who were present on the occasion cannot fail to be impressed both with its general design and with the workmanship which has been bestowed on its furnishings and equipment’ …

Nor can anyone fail to be impressed by the library today. It allows barristers and students to do legal research work of the highest standard, and provides services to barristers outside London. I was there only last week, doing international law research I could do nowhere else. It’s also a fine interior that deserves to be left alone.

Yet now, fifty-seven years after it was built, Inner Temple library faces a new threat—this time, shockingly, from Inner Temple itself. The plan is to spend £16 million and close the library for 18 months in order to get rid of five of its rooms, together with its fine gallery; to install a depressing plaster ceiling to lour over what remains; to take away half the spaces for readers to sit and work, and to remove 25,000 books.

The books really matter, and the space really matters, as David Allen Green explains in his very good piece about this plan. To think none of it’s important in the digital age is wrong, and glib.

The idea’s to make way for education and training rooms and a 120-seat “auditorium” to be hired out at a profit. Private Eye (No. 1400) said about the plan—

In a rush to monetise their prime slice of City real estate, scheming elders at the Honourable Society of the Inner Temple are pushing ahead with plans to create a lucrative commercial training complex – even if it means taking the sledgehammer to one of the oldest libraries in London.

Astonishingly, according to a submission drafted by the Inn’s Library Committee this summer, this proposal hasn’t even been the subject of a proper business plan assessing the likely income from the new facilities. How can Inner Temple’s governing benchers even think of doing it?

How could anyone do it? On a speculative punt, it would spoil a permanent professional and educational asset and a true centre of excellence—and instead assemble something that’ll be “state of the art” only on the day it opens. That a library might be intentionally damaged in the interests of “education and training” makes “education and training” a sinister phrase. The library is the best education and training resource the Inn will ever have, and should not be cut down at all. It should be enhanced and preserved.

Is it even intended that any revenue the auditorium might earn should be paid to the public purse? It ought to be, since any profit would be made from the destruction of an asset public money bought for Inner Temple.

This goes beyond the interests of the Inner Temple, or of the Bar. To wreck this outstanding library would not merely be deliberate vandalism. Nor would it just be anti-professional, anti-intellectual and anti-educational. It would insult the people, who built it, and this country’s history. What Hitler destroyed and the public rebuilt should endure.

If you’re not a barrister, you can visit the library this weekend from 11 am to 4.30. It may be your last chance to see it as it was meant to be. Please read about the campaign to save the library, please sign the petition against this horrible plan—and if you have any other influence, please exert it.

2015-09-16T13:48:45+00:00Tags: |

If you think it was murder, say so

September 11 2015

How many articles and blogposts have referred to Orwell’s classic essay Politics and the English Language? Well, here’s another. I’m put in mind of it by recent use of the sinister phrase “extrajudicial killing” to describe the lethal RAF strike on British “Islamic State” fighters. Bad writers, according to Orwell

and especially scientific, political, and sociological writers, are nearly always haunted by the notion that Latin or Greek words are grander than Saxon ones, and unnecessary words like expedite, ameliorate, predict, extraneous, deracinated, clandestine, subaqueous, and hundreds of others constantly gain ground …

Notice that one of his examples begins with extra.

Kate Hudson of CND has been quoted in the Telegraph as saying of the RAF drone strike—

This is extrajudicial killing: A British Prime Minister now claims the right to kill British citizens when they travel abroad.

Lord West, quoted in the Guardian, said the RAF’s apparent new policy

could very easily creep into an issue of extrajudicial killing.

The Morning Star used the phrase in a headline while according to the Herald the SNP’s Humza Yousaf talked somewhat tautologically of

the extra-judicial killing without trial of British citizens

and the subheading to a Guardian piece by Gary Younge said

extrajudicial killings can never be justified.

It is often easier, Orwell wrote

to make up words of this kind (deregionalize, impermissible, extramarital, non-fragmentary and so forth) than to think up the English words that will cover one’s meaning.

Notice again that one of his examples begins with extra. People who write badly, he went on

usually have a general emotional meaning—they dislike one thing and want to express solidarity with another—but they are not interested in the detail of what they are saying.

Indeed, critics of the recent RAF drone strike do dislike it in a general way. But what is meant by “extrajudicial killing”? Why is an extrajudicial killing especially bad? Does it even mean anything?

It may help to consider whether judicial killing would be better. It makes a sort of sense to complain that Reyaad Khan’s death was an extrajudicial execution if you’re David Davis, since he has backed the death penalty which should indeed be judicial if it happens at all. Why do others avoid the word execution? Perhaps, ironically, it seems too strong given its common and quite wrong use for the atrocious murders committed by “Islamic State”. Or perhaps they remain dimly aware through the fog of verbal war that pre-emptive defence is not punishment.

In Britain, in any case, we abandoned capital punishment some time ago. Now, the idea that someone might be killed judicially is particularly repellent. I doubt critics of “extrajudicial killing” prefer to have anyone put to death by due process of law, but the phrase implies just that. Orwell was right: it must be that they’re not interested in the detail of what they’re saying.

But if thought corrupts language, language can also corrupt thought. A bad usage can spread by tradition and imitation even among people who should and do know better.

The phrase extrajudicial killing is indeed spreading and corrupting thought. Judicial killing not being fine, “extrajudicial” adds nothing and means nothing. All that these critics are actually saying is that killing’s to be feared, or always wrong: something that’s either banal or plain inaccurate, since killing can be justified in self-defence or war, or even out of compassion. But what are they trying to say?

The convenience of extrajudicial killing is that it implies wickeness vaguely connected with the law, without accusing anyone of breaking it; and its repetition suggests to the mind unspecified wrong by sending thought to sleep. Here’s Orwell again:

This invasion of one’s mind by ready-made phrases … can only be prevented if one is constantly on guard against them, and every such phrase anaesthetizes a portion of one’s brain.

Orwell also gave us the remedy, however.

If you simplify your English … when you make a stupid remark its stupidity will be obvious, even to yourself.

It is stupid to complain of “extrajudicial” killing by the RAF, when warfare has always been extrajudicial. If instead you simply oppose killing by British forces, your stupidity should indeed be obvious. Unless you think Britain should never use force, then obviously you agree its armed services may legitimately kill. When they do so intentionally and illegally it is indeed wrong, but the plain English word for that is murder.

The most famous sentence in Orwell’s essay runs like this:

Political language … is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.

You may think the RAF murdered Reyaad Khan, and that any defence of this drone strike reflects an Orwellian design to make murder respectable. If you do think so, have the courage to use the word.

2015-09-11T09:48:30+00:00Tags: , , |

The killing of Reyaad Khan: Britain’s letter to the UN

September 10 2015

A row has broken out since the publication of the letter from the UK to the UN, in which the British permanent representative reports the drone strike that killed Reyaad Khan to the UN Security Council as required by article 51 of the UN Charter. The letter says—

the United Kingdom … has undertaken military action in Syria against the so-called Islamic State in Iraq and the Levant (ISIL) in exercise of the inherent right of individual and collective self-defence.

On 21 August 2015, armed forces of the United Kingdom … carried out a precision air strike against an ISIL vehicle in which a target known  to  be  actively  engaged  in  planning and  directing  imminent  armed attacks against the United Kingdom was travelling. This air strike was a necessary and  proportionate  exercise  of  the  individual  right  of  self-defence  of  the  United Kingdom.

As reported in our letter of 25 November 2014, ISIL is engaged in an ongoing armed attack against Iraq, and therefore action against ISIL in Syria is lawful in the collective self-defence of Iraq.

In his statement to the Commons on Monday David Cameron gave only the defence of Britain as the international law justification for the attack, and some are using the discrepancy to suggest the legality of the strike is in doubt.

The Guardian quotes Jennifer Gibson of Reprieve as saying—

David Cameron needs urgently to answer questions about whether there was genuinely an imminent threat to the UK or is this an expansion of the war against Isis without parliamentary approval? This argument was never raised in parliament. It can’t be both explanations

and Professor Philippe Sands QC as saying the letter—

appears to posit two alternative justifications. The first is the self-defence of the United Kingdom, the second is collective self-defence in support of Iraq. The latter is an entirely different justification as a legal matter …

Reprieve have also released a statement saying

The Prime Minister’s supposed reasons for carrying out this unprecedented drone attack seem to be changing by the day.

On Twitter, David Allen Green has said—

But is the letter actually a reason to think the drone strike was illegal? No.

The UN letter relies on British self-defence just as the Prime Minister did in the Commons: that argument has not changed since Monday, or been resiled from in any respect. Nor is it a new suggestion that force against “IS” in Syria would be lawful. The government must already have thought so, or it wouldn’t be considering asking MPs to vote on extending British action into Syria, something it’s been talking about at least since July and that the Defence Secretary mentioned again today. So why’s anyone surprised that the argument’s raised now?

Philippe Sands is quite right that defence of Britain and of Iraq are different legal arguments; any two legal arguments are different from each other. But he’s wrong to say they’re alternatives, if by that he implies that they’re mutually exclusive. Jennifer Gibson is wrong, too, to say

It can’t be both explanations.

It certainly can be both. If, as the Prime Minister told MPs and as is set out in the UN letter, Khan was planning and directing attacks against the UK itself, then killing him was justified in defence of Britain; and if he was part of the general “IS” armed force threatening Iraq, then killing him was justified in defence of Iraq. Each legal argument is independent of the other, and both are equally and simultaneously capable of applying to this set of facts. There is no contradiction.

On Twitter and in comments here @SpinningHugo has from the very beginning suggested that defending Iraq was sufficient (and in his view better) justification. He’s made the same argument on his blog today.

I replied to him in comments yesterday saying—

I agree that may be a perfectly good legal defence here, and you’re quite right that I do think it’s legal in terms of international law (regardless of whether MPs have authorised it) for UK forces to act against “IS” in Syria, to defend Iraq. It’s possible the government has avoided using that justification simply because of the political embarrassment involved, given that authorisation for action is limited to Iraq …

… Another possibility is that the government believes Reyaad Khan had no active or command role in “IS” operations in Iraq at all, and was simply working full time on his computer encouraging and coordinating terrorism in Britain. If you thought that, you might well feel targeting him as an individual (rather than any general “IS” base that just happened to be in or around Raqqah) could be justified in defence of the UK but not really in defence of Iraq.

It now seems from the UN letter that political embarrassment was the reason for not mentioning Iraq.

David Cameron was a fool to have mentioned only British self-defence in his Commons statement since, in the fortnight plus between August 21 (when the strike took place) and September 7 (when he spoke to the House), he must have been made aware both legal points would be put to the UN. In post-Iraq, mid-Chilcot Britain, the merest hint of “changing legal advice” is a gift to opponents of military action against “IS” in Syria. He ought not to have risked any such perception.

But the case that the strike was legal is no weaker now than it was on Monday.

Law and the killing of Reyaad Khan

September 7 2015

This afternoon in the House of Commons the Prime Minister told MPs that Reyaad Khan, the “Islamic State” fighter from Cardiff, was killed in Syria in a targeted RAF drone strike. His death was reported some days ago but it was not clear till now that it the RAF had targeted him. The case raises several issues, but I agree with what the PM said the Attorney General advised — that this operation was lawful.

The Attorney General’s advice

The normal convention is that ministers do not refer publicly either to the fact that the Law Officers have been consulted, or to the content of their advice. But David Cameron departed from this convention, saying the Attorney General had been consulted and had given positive advice.

In a sense this was inevitable: once the PM had given MPs his view of the legal basis for the attack, it would have been politically impossible to leave in any doubt whether or not the Attorney had been asked, or had agreed. It’s not clear at all that the usual non-disclosure can be maintained at all in future in cases involveing the use of force abroad (something I expect the Chilcot inquiry to make recommendations on).

International law

The PM said Khan was plotting terror attacks in the UK, so the strike was an act of self-defence under article 51 of the UN Charter. It provides—

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council …

Mr Cameron made clear that the government will be writing to the UN Secretary General today to report this as an act of self-defence. But is it?

The first question is whether anything planned by “IS” against Britain would have been an “armed attack”. In the Nicaragua case, the International Court of Justice held that not every incident involving force will amount to an “armed attack” justifying self-defence: but said (para. 195)

The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.

The ICJ’s point here is to make clear that not every minor border incident justifies the use of serious retaliatory force.

But of course the bombing of civilians in a British city would, if carried out by (say) French forces, be classified as an armed attack because of its scale and effects. So, while there’s room for critics of the RAF strike to quibble about this and ask for more details about what intelligence there was and what Khan was planning, it seems to me that any substantial terrorist plan would easily meet the threshold.

Some would argue that an armed attack has to be by a State, or attributable to one, before the UK can defend itself. Here, the RAF’s attack violated Syrian sovereignty but Khan’s plans, whatever they were, can’t obviously be blamed on the Syrian regime. But I don’t think this is a strong argument against the UK .

If the inteference with Syrian sovereignty involved in this attack must be justified by the attribution of some Syrian blame for Khan’s plans, then the fact that Syria was “unwilling or unable” to stop him provides that justification. As I argued last year,

international law must permit a state under attack to respond to and defeat its nonstate enemy, even on the territory of another state, if that state is unable or unwilling to help it.

In any event, the insistence that self-defence can only be invoked against sovereign states seems to me unreal after 9/11. Either international law on the use of force is an ass, unfit for purpose in the 21st century; or its principles must be capable of application to today’s real threats to peace and security. I think the latter.

There’s an interesting discussion of both the “scale” and “state” issues by Karl Zemanek at the Max Planck Encyclopedia of Public International Law.

Finally, it may have occurred to you that none of Khan’s plans seem to have been implemented — so where’s the “armed attack”? A fair point, but customary international law has long recognised that pre-emptive self-defence can be lawful under the “Caroline” principles, where the

necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation

words which again allow room for quibbles, if applied in a literal way. Was there an instant, overwhelming need to kill Khan at that moment? Could his plans not be averted by police action in the UK? Surely there was a moment of deliberation if the Attorney General could advise? I think these would be pretty weak attempts at hair-splitting.

If there was intelligence that Khan was involved in substantial “IS” terror plots, then it’s reasonable to see stopping him (rather than just stopping his plans individually, “downstream”) as an overwhelming necessity. No other means of stopping him is available to Britain in lawless Syria. And once he was located, the necessity to act became instant, since another chance to stop him might not come.

Of course the use of any force must be proportionate; and this was. No civilians were killed in the attack, so it’s impossible to argue that civilian casualties were disproportionate to the military advantage gained.

Human rights law

International law isn’t the only thing to consider, though. There’s also European human rights law, and our own domestic law.

The European Convention on Human Rights does not apply to this killing. Applying the principles laid down in Al Skeini v UK (see para. 130-142), Britain did not exercise control and authority over Khan, or effective control over the area he was in. The article 2 Convention right to life does not, therefore, apply. It’s not even necessary for the UK to rely on article 2.2(a), which permits killing in defence of others, either in the European Court of Human Rights or in our own courts under the Human Rights Act.

Domestic criminal law

Finally, the Attorney General’s advice would have considered the law of England and Wales if the drone that killed Khan was operated from within this jurisdiction; or if some commander based here gave the order or participated in the decision.

It’s an offence in this country to murder a British citizen abroad, under section 9 of the Offences Against the Person Act 1861; and this was, obviously, an intentional killing. It was however lawful on the basis of the principle we refer to as “self-defence”, but which is actually wider: you can use reasonable force in defence or yourself, or another person or property.

It was also lawful because of the statutory defence in section 3(1) of the Criminal Law Act 1967, which says—

A person may use such force as is reasonable in the circumstances in the prevention of crime …

There can be no doubt any terror plans Khan was working on would have involved crime. The only remaining question is whether killing him by a drone strike was reasonable in the circumstances.

That, of course, is a question of judgement. But assuming the RAF thought Khan’s plans involved killing a number of civilians it seems hard to say otherwise — especially since under section 78(3) of the Criminal Justice and Immigration Act 2008

The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be

and since under section 78(4) an honest belief is ultimately enough on which to base the defence, even if it is mistaken or unreasonable.

The law is, in short, that it’s lawful to use force proportionate to a threat you honestly believe someone presents. And it’s lawful to do so pre-emptively because, as Lord Griffiths explained in the Privy Council’s judgment in 1987 in Beckford

a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.

There seems to me no question but that this was a lawful killing in terms of domestic criminal law.

The emerging convention on approval of military action

The final legal point raised by this incident is one of constitutional law, and the emerging constitutional convention that the government does not order the use of military force abroad without the approval of the House of Commons. The PM has previously argued that

you should consult the House of Commons as regularly as you can and the House of Commons should have an opportunity to vote. The point I always make, though, and this is not to run away from the right hon. Gentleman’s particular scenario in any way, is that it is important that a Prime Minister and a Government reserve the right to act swiftly without consulting the Commons in advance in some specific circumstances—for instance, if we had to prevent an immediate humanitarian catastrophe or, indeed, secure a really important, unique British interest. But other than that I believe it is right, as he said, to consult the House of Commons.

and today he relied on this flexibility, in circumstances where it obviously wasn’t possible to ask for a vote before making the strike.

Pannick on Mr Justice Peter Smith

September 3 2015

Today’s Times has a piece by Lord Pannick QC (behind the Times paywall) on the extraordinary behaviour of Mr Justice Peter Smith in a case involving British Airways earlier this summer. The case, he says,

raises serious issues about judicial conduct which need urgent consideration by the Lord Chief Justice.

The case was reported on at the time by the Independent and was explained by Rupert Myers in the Guardian:

When Mr Justice Peter Smith sat in the high court on a case involving British Airways and demanded to know what had happened to his bags on a recent romantic trip to Florence, he had unusual powers that the rest of us do not possess. Injudiciously, he threatened to use them. Smith even entertained the idea of summoning British Airways’ chief executive to explain the mishap in a competition case heard at vast expense. The judge was finally invited to realise that his remarks left him completely unsuited to hearing the case.

The transcript of the hearing was published by Legal Cheek.

Lord Pannick writes that there are three “troubling features” of this “unhappy episode”.  First, Peter Smith J’s personal irritation made it impossible for him to act fairly. Second, what Pannick calls the judge’s “inexcusably bullying manner and threats”. And third—

the judge’s arrogant comments concerning the decision of the Court of Appeal in 2007 to remove him from an earlier case in which he had been unable to recognise that his personal interests made it inappropriate for him to sit …

Here’s the the Court of Appeal judgment in that earlier case, Howell v Lees Millais, in which Sir Igor Judge had said (para. 32)

The application to Peter Smith J to recuse himself was entirely justified … His irritation is obvious … It arose exclusively and directly from the judge’s personal affairs …

Legal Cheek’s transcript of this summer’s hearing quotes Peter Smith J as saying about that earlier case—

I have no regrets about Millais. I have plenty of regrets about the way in which the Court of Appeal went about their decision, but … we are no longer surprised by what happens in the Court of Appeal.

Pannick concludes today’s Times piece by saying:

On hearing about this latest episode, no-one at the bar or on the bench would have said, “What, Mr Justice Peter Smith? Surely not?” Litigants are entitled to a better service than this. The reputation of our legal system is damaged by such behaviour. The Lord Chief Justice should consider whether action to address Mr Justice Peter Smith’s injudicious conduct has, like his luggage, been delayed for too long.

This was the reaction this morning from Dinah Rose QC—

and this afternoon from UCL’s Professor of Law and Professional Ethics, Richard Moorhead

2015-09-03T13:43:07+00:00Tags: , |

Sir John! Sir John! Are we there yet?

August 31 2015

One of the absurdities of this year’s “silly season” has been another of Britain’s periodic bouts of Chilcot-bashing. When there’s a period of slow news, it seems, journalists remember that Sir John Chilcot was tasked six years ago with inquiring into what we all call simply “Iraq”; and that his report’s not published yet. There follows a chorus of disapproval, and demands that something be done.

There is a substantial development: the threat of legal action against the inquiry by the families of some of the British forces killed in Iraq, explained on BBC Radio 4’s Today programme on August 13 by their solicitor Matthew Jury, and by Reg Keys, the father of one of the soldiers who died. They aim to force Sir John into setting a timetable for publication. Like everyone else I have sympathy for these families, but I’m afraid this legal action can achieve nothing except even further delay.

A couple of days later, the Prime Minister, also on the Today programme, told Sir John he had “got to get on with it”, something I doubt was either necessary or wise. But I’m more concerned about subsequent comments made by some big legal figures.

First, on August 18 a letter from Baroness Butler-Sloss was published in the Times, in which she said

I assume the evidence in the Chilcot inquiry is enormous and the task of writing the report a daunting one, but I fail to understand why the passages critical of witnesses could not be sent to them with a deadline for the replies if that is, indeed, the main reason for what appears to be an inordinate delay in completing the report.

Two days later Lord Lester of Herne Hill QC also wrote to the Times, saying

I am puzzled about the reasons for the inordinate delay in completing the Chilcot inquiry. I acted as counsel for witnesses in the Crown Agents inquiry and the Scott inquiry. Both my clients faced serious criticism. In each case the tribunal ensured that they were given an opportunity to respond to the allegations against them within a reasonable time frame set by the tribunal. Both inquiries had the advantage of a legally qualified chair and of the assistance of counsel to the tribunal …

One reason for the inordinate delay in Chilcot’s case may be a lack of legal expertise about how to avoid being trapped by legalism and ensure that justice is not done to death.

Notice that both these letters assume Chilcot set no time limit for the “Maxwellisation” process, in which those the inquiry is minded to criticise are shown portions of its draft report for comment before it is finalised and published.

Lord Lester went on the Today programme that morning, to say

although I’m a peer, I don’t regard myself as part of [the] establishment

and to repeat his view that lawyers or judges might have ensured

justice is not done to death.

Sir John Chilcot, he said, is

completely out of his depth here

although in his next answer Lord Lester was candid enough to admit

I don’t know what Sir John has done.

After the classic line

You don’t have to be a lawyer to have common sense

which I’m not 100% sure was ironically meant, he went on

There has to be a timeframe. You have to be able to say, “Look, you’ve got three months to do it”, and then if the guy comes back and says “Sorry” at the end of three months “I haven’t been able to finish it”, you may give him another two or three months. But there has to be discipline imposed …

Although he admitted judges and lawyers had not helped matters in one notorious case,

It happened with the Bloody Sunday inquiry where there was a very distinguished judge who allowed the inquiry to run on too long

nonetheless he insisted that as far as the Chilcot inquiry is concerned,

common sense and discipline … seems to be lacking.

The following day, August 21, it was the turn of the former Attorney General Lord Morris of Aberavon QC to have a go. He chose to make his written submissions in the Daily Mail, accusing Chilcot of

bureaucratic dawdling

and agreeing with Lord Lester that lawyers are what’s needed:

Another problem is that there was no lawyer on the panel. Chilcot himself is a civil servant, while the other members include a diplomat, a historian and an academic.

Moreover, he wrote

it is unlikely that any judge would have allowed the process of Maxwellisation – whereby witnesses are sent letters allowing them to respond to criticism in any draft report – to play such a dominant and negative role.

Chilcot has elevated Maxwellisation into a central feature of his inquiry even though it is only a convention, not a legal requirement.

Lord Morris too then had a hearing on the Today programme, where like Lord Lester he said

I’m no part of any establishment.

No one ever seems to be, do they? You should, he said

give a reasonable time … to those who are criticised

but the time Sir John is taking, he said

is an unfair amount of time so far as the public are concerned.

Lord Morris called for a statutory timetable, saying

the Prime Minister can pull the plug

and suggesting that perhaps some new team be sent in to inquire into whether some sort of interim report could be published. Somewhat laughably he said

it’s Parliament ultimately that is the guardian of independence

whereas of course the inquiry’s independence from politicians in Parliament is one of the most important things about it.

Far more sensible than either of these respected silks was the non-lawyer Lord Owen, who spoke that afternoon on Radio 4’s lunchtime news programme The World at One. He also said the inquiry had taken too long,

but the main reason it has taken so long has been the withholding of evidence which the committee wanted and had every right to demand.

He rightly mentioned the inquiry panel’s demands to the government to see correspondence from Tony Blair to President Bush, adding that

the delay that went on over that period was certainly 18 months, and it may have been a lot longer.

In his view

very important evidence came out as a result of the committee holding very firm through 2012 and 2013, even to 2014, that they would not publish unless these papers came out; and eventually a compromise was struck.

Lord Owen also reminded us of the enormous scope and scale of the inquiry compared to the Bloody Sunday inquiry, which was run by a judge and fully lawyered-up, and ran for ten years although it was investigating the events of only one day.

You’ll recall that Baroness Butler-Sloss and Lord Lester assumed no Maxwellisation “deadlines” had been set by Sir John Chilcot; and that Lord Lester suggested he ought to have set a renewable deadline of perhaps three months.

Well, the following week the former overseas development secretary Clare Short also went on to The World at One to discuss the inquiry process, in spite of being asked to keep it confidential. Her aim seemed to be to do some of her own Maxwellisation live on radio. But her interview made several interesting things clear: first, that she was indeed set a deadline of a few weeks to respond to Maxwellisation, some time ago; second, that having seen that part of the report which criticises her, she thinks it will be very long; and third, that she thinks many people may be criticised in it.

The criticism, she said

seems to go right across Whitehall …

As far as Maxwellisation is concerned, she said that

there’s a time limit for everyone to comment

and so

the suggestion that Maxwellisation is causing all the delay, I don’t think is true.

She had been given a deadline, she said, of

a few weeks, and the deadline was a long time ago, and I think everyone was given that deadline … a long time ago.

This is of course a shorter, more disciplined timetable than Lord Lester suggested a lawyer with common-sense might impose. Clare Short went on to say

this suggestion that … people are endlessly being consulted, I think, is untrue.

The inquiry had written to her

with an absolute deadline to respond, and that was a good time ago … That suggestion that’s been endlessly put out, as though some people are playing the system, is false.

Clare Short’s interview on its own blew out of the water the assumption made by Lady Butler-Sloss, Lord Lester and Lord Morris that no deadlines were set at all. And on the very same day Sir John Chilcot issued a statement in which he made clear that

Individuals have not been given an open ended timescale and Maxwellisation is not a process of negotiation. The Inquiry has remained in control of its deadlines throughout the process. In some cases, the responses sent to us required detailed and complex analysis which is taking time.

The Maxwellisation process is essential not only to the fairness but also the accuracy and completeness of our report. It has already led, for example, to the identification of government documents which have not been submitted to the Inquiry and which have in some cases opened up new issues.

The campaign of political and media chuntering against Sir John Chilcot is absurd; and it’s wrong for senior legal figures to have lent their voices to it. This is a vast inquiry, covering years of government policy, military operations and administration in occupied Iraq: a far bigger scope than that of the Bloody Sunday inquiry and bigger too than the Scott inquiry, which took three and a half years. A key figure in the inquiry, Sir Martin Gilbert, died this year after falling ill in 2012; and the panel apparently spent years in conflict with government, doing its job of uncovering documentary truth. Even what seems (in fact rather than imagination) to be a tightly controlled Maxwellisation process has apparently put Sir John on the trail of yet more undisclosed papers.

Sir John’s critics should shut up and behave on the back seat, so he can focus on the remainder of the journey.

2015-09-17T19:19:24+00:00Tags: , , , , , |
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