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.

2015-09-10T21:55:32+00:00Tags: , , , , |

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.

2015-09-14T17:00:21+00:00Tags: , , , , , , , |

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: , , , , , |

The Supreme Court’s JR38 judgment
— in a few sentences

July 1 2015

In the JR38 case, the Supreme Court today dismissed the appeal of a young man who’d argued that his article 8 Convention right to respect for private life was breached where newspapers published, on the police’s request, photos of him apparently taking part in a riot, aged 14. Here’s my legal analysis, in a few sentences, of what the Justices held.

RATIO—Riot is not an activity which the right to respect for private life exists to protect, and there is no reasonable expectation of privacy in relation to the publication of photographs of recent rioting for the purpose of identifying those involved. The Convention right to private life is therefore not engaged (Lords Toulson and Clarke, with whom Lord Hodge agreed);

OBITER—Publication as a last resort to identify offenders is justified and proportionate (All five Justices).

 
A minority agreed that the publication was justified, but dissented on the first point, saying article 8 was engaged.

The reasonable expectation of privacy is just one factor relevant to whether article 8 is engaged. A child’s need for protection can go beyond what an adult could reasonably expect. Article 8 therefore includes the need to protect a child from exposure as a criminal (Lord Kerr, with whom Lord Wilson agreed).

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

2015-07-01T16:23:47+00:00Tags: , , , |

Supreme Court: Publication of child rioter’s photo doesn’t interfere with private life

July 1 2015



In the JR38 case, the Supreme Court today unanimously dismissed the appeal of a young man who’d argued that his article 8 Convention right to respect for private life was breached where newspapers published, on the police’s request, photos of him apparently taking part in a riot, aged 14. But the Justices were not unanimous in their reasoning.

A majority (Lords Toulson and Clarke, with whom Hodge agreed) ruled that the right to private life is not engaged at all in these circumstances. Riot isn’t an activity which the right to respect for private life exists to protect, they said; and there’s no reasonable expectation of privacy in relation to the publication of such photographs.

Dissenting, Lord Kerr (with whom Lord Wilson agreed) said the reasonable expectation of privacy isn’t the be-all and end-all, since a child’s need for protection can go beyond what an adult could reasonably expect. A child’s identity is protected by the Convention right to privacy when subject to criminal proceedings.

All the Justices agreed, though, that publication as a last resort to identify offenders was justified and proportionate.

Most of the written judgments is taken up by the debate about whether the article 8 right applies at all,  and competing analyses of previous case law. Lord Kerr focused on children’s rights, and the philosophy behind rules protecting the anonymity of child offenders. He said (para. 48)

It does not lie easily with the scheme of protection of a child’s identity envisaged by this provision that the publication of his photograph, for the very purpose of enabling those who know or recognise him to identify him in the course of criminal activity, should not fall within the scope of a Convention provision which guarantees his right to respect for a private life.

The notion that it should not, he said (para. 50)

is distinctly out of step with the philosophy which underpins article 3(1) of [The UN Convention on the Rights of the Child]. That philosophy, so far as it relates to criminal proceedings against children, is prominently proclaimed in article 40(2)(vii) of the Convention which requires states who are party to the Convention to ensure that the child’s privacy is fully respected at all stages of the proceedings.

The core of his reasoning is at para. 53:

A child’s identity should be protected even (or, perhaps, especially) when he or she has been subject to criminal proceedings. The ambit of article 8 of ECHR must be seen as including within its embrace the need to protect a child from exposure as a criminal. That it should apply to the publication of a photograph of a child while, apparently, engaged in criminal activity, must follow inexorably. I consider, therefore, that there has been an interference with the appellant’s article 8 right.

He rejected the idea that a “reasonable expectation of privacy” test was alone decisive (para. 56):

The test for whether article 8 is engaged is, essentially, a contextual one, involving not merely an examination of what it was reasonable for the person who asserts the right to expect, but also a myriad of other possible factors such as the age of the person involved; whether he or she has consented to publication; whether the publication is likely to criminalise or stigmatise the individual concerned; the context in which the activity portrayed in the publication took place; the use to which the published material is to be put; and any other circumstance peculiar to the particular conditions in which publication is proposed.

It would be facile, he said (para. 65)

to say that, because he was rioting, he cannot have expected that a right to respect for private life would be engaged and, on that account alone, it was not engaged. A child’s need for protection can go beyond what, if he was an adult, he would be reasonably entitled to expect.

It’s especially interesting that Lord Kerr gave the lead judgment, outlining the facts of the case. Usually, you’d expect the Justice giving the lead judgment to be in the majority. Lord Kerr’s being a Northern Irish judge might explain it (since this was a Northern Irish case, about rioting in Derry). But it may also be that one of the other Justices changed his mind between the first conference where they discussed the case, and finalisation of the draft judgments.

Lord Toulson and Lord Clarke both write for the majority. Lord Toulson did not see the appellant’s age as critical (para. 95)

The fact that the appellant was a child at the relevant time is not in my opinion a reason for departing from the test whether there was a reasonable (or legitimate) expectation of privacy, but it is a potentially relevant factor in its application.

He did not therefore agree (para. 98)

with Lord Kerr’s suggestion (para 55) that the test of reasonable expectation of privacy … excludes from consideration such factors as the age of the person involved, the presence or absence of consent to publication, the context of the activity or the use to which the published material is to be put. The reasonable or legitimate expectation test is an objective test. It is to be applied broadly, taking account of all the circumstances of the case … and having regard to underlying value or values to be protected.

This seems to be a narrow, somewhat academic disagreement: is the “reasonable expectation of privacy test” just one step in deciding whether the right to private life applies, or are other factors (like the age of the person involved) enfolded within it? But Lord Toulson’s insistence on the need for a reasonable expectation of privacy led him to different conclusions from Lord Kerr (para. 100):

When the authorities speak of a protected zone of interaction between a person and others, they are not referring to interaction in the form of public riot. That is not the kind of activity which article 8 exists to protect.

Lord Clarke agreed (para. 109)

It is difficult to see why article 8.1 should be engaged where the applicant has no reasonable expectation of privacy. It is important in this respect to have regard to the fact that the concept of reasonable expectation is a broad objective concept and that the court is not concerned with the subjective expectation of the person concerned, whether that person is a child or an adult.

He agreed with Lord Toulson that the criminal nature of what the appellant was doing was not an aspect of his life that he was entitled to keep private (para. 112)

He could not have had an objectively reasonable expectation that such photographs, taken for the limited purpose of identifying who he was, would not be published. I would not however hold that the mere fact that a person is photographed in the course of a criminal activity deprives him or her from the right to prevent the police from publishing the photographs. Thus, if the photographs had been published for some reason other than identification, the position would have been different …

This is an important an interesting case on the application of the Convention right to respect for private life. The ruling that article 8 does not apply at all matters, because it means police and newspapers will arguably not even have to justify publication of photos in circumstances like these in future (although I imagine in practice they’ll adopt a cautious approach to bring themselves within the court’s unanimous view).

I wonder whether this case will now to to the European Court of Human Rights in Strasbourg – and whether that court might be attracted by Lord Kerr’s “children’s rights” inflected approach to privacy.

2015-07-01T16:36:38+00:00Tags: , , |

Could Greece take Europe to court?

July 1 2015

Dennis Skley | Creative CommonsCould a desperate Greece go to court over its financial dispute with Europe? The crisis is more about politics and finance than it is about law. But some reports have suggested Greece might take legal action. So let’s look at the relevant legal texts, and some ways in which – theoretically, anyway – Greece could take its case to European Court of Justice.

We should start with the bailout that’s just run out. This was governed by the Master Financial Assistance Facility Agreement, a contract between the European Financial Stability Fund (a creature of the Eurozone states), Greece itself, and the Bank of Greece. That contract was initially drafted so as to terminate at the end of 2014, but has been extended three times, most recently to extend the “availability period” until the end of June 2015.

Interestingly the agreement is subject to English law, but to the jurisdiction of the Luxembourg courts. See clause 15 of the principal agreement.

But in case you’re thinking Greece could urgently seek some sort of order from a Luxembourg court, failure to renew or an extend an agreement is of course not in itself a breach of that agreement. I don’t think anyone’s suggested there’s been any breach by the EFSF. So Greece’s legal options lie elsewhere.

First, the Greek banking system has as I understand been held up since February by “emergency liquidity assistance”, a system under which the Bank of Greece makes loans to Greek banks and draws down money from an ECB loan facility in order to do so. ELA is operated in accordance with published procedures, but ultimately governed in law by article 14.4 of the Statute of the European System of Central Banks and of the ECB.

Article 14.4 says (somewhat obscurely) –

National central banks may perform functions other than those specified in this Statute unless the Governing Council finds, by a majority of two thirds of the votes cast, that these interfere with the objectives and tasks of the ESCB. Such functions shall be performed on the responsibility and liability of national central banks and shall not be regarded as being part of the functions of the ESCB.

The Governing Council of the ECB and ESCB (the ECB’s executive board plus the governors of the national central banks of Euro states) has already capped the level of ELA to Greece under article 14.4, a couple of days ago. But as the BBC reported,

The ECB could go further … and announce it will withdraw ELA all-together as the country’s bail-out programme officially expires.

Either of these decisions – the one already taken or any future limitation or withdrawal of ELA – could be challenged by Greece under article 35.1 of the Statute, which says:

The acts or omissions of the ECB shall be open to review or interpretation by the Court of Justice of the European Union in the cases and under the conditions laid down in the Treaty on the Functioning of the European Union.

The European Court’s jurisdiction ultimately comes from article 263 of the Treaty on the Functioning of the EU, though, which says:

The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank … It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.

It shall for this purpose have jurisdiction in actions brought by a Member State …

Any decision to restrict ELA is an “act” of the ECB, and so challengeable by Greece in the European Court.

Greece’s argument would be that the ECB, by taking steps likely to push Greece out of the Euro, was in breach its duty under article 127 TFEU through the ESCB to

support the general economic policies in the Union with a view to contributing to the achievement of the objectives of the Union as laid down in Article 3 of the Treaty on European Union

objectives which include establishing

an economic and monetary union whose currency is the euro.

Secondly, Greece yesterday asked for a new type of bailout: a loan under the Treaty establishing the European Stability Mechanism. The Board of Governors of the ESM is made up of Eurozone finance ministers, and has power to agree a loan to Greece under article 16 of the ESM Treaty (note the reference to a “Memorandum of Understanding”, however, which would mean conditionality; it’s discussed further in article 13.3).

The Board seems already to have refused the loan, or else has refused to consider it pending the Greek referendum next Sunday.

Article 37 of the ESM Treaty gives Greece a second way of “appealing” to the European Court of Justice. It must first ask the Board in effect to review its refusal under article 37.2, and assuming it maintains its refusal, Greece can then take the dispute to the ECJ under article 37.3:

If an ESM Member contests the decision referred to in paragraph 2, the dispute shall be submitted to the Court of Justice of the European Union. The judgement of the Court of Justice of the European Union shall be binding on the parties in the procedure, which shall take the necessary measures to comply with the judgment within a period to be decided by said Court.

Greece’s argument here would be that by refusing to consider or grant a loan, the ESM is acting contrary to its article 3 purpose

to mobilise funding and provide stability support under strict conditionality … to the benefit of ESM Members which are experiencing, or are threatened by, severe financing problems, if indispensable to safeguard the financial stability of the euro area as a whole and of its Member States.

So there are two types of legal challenge open to Greece: against the EBC’s restriction or withdrawal of ELA, under the main TFEU Treaty; and an ESM Treaty challenge to the refusal of (or refusal to consider) an ESM loan.

Greece would surely want to suspend the restriction of withdrawal of ELA – something that can be ordered by the European Court, under article 278 TFEU. Or Greece might want to compel the grant or consideration of an ESM loan. It would have to argue that the ECJ had power to grant interim measures requiring this in an ESM Treaty case, under (or by analogy with) article 279 TFEU.

So there are ways in which Greece could take its argument to the European Court. But judges are not economists or financial experts; and in the real world, the chances of the ECJ ruling against the ECB and Eurozone ministers and ordering ELA support or an ESM loan – let alone that Greece can obtain such an order in time to influence financial events – must be vanishingly small.

Thirdly and less immediately, Greece could take its fellow Eurozone member states to the ECJ under article 259 TFEU, alleging breach of their duties of sincere and loyal cooperation by failing to take all steps necessary to keep Greece in the Euro. But by then, it’d all be too late.

 

2015-07-01T14:10:25+00:00Tags: , |

Of course the DPP must not resign over Janner

June 29 2015

The CPS has announced that Lord Janner is to be prosecuted for child sex offences alleged to have been committed between 1963 and 1988. This follows a review by David Perry QC under the Victims’ Right to Review Scheme, reversing the DPP’s original decision that prosecution would not be in the public interest. The CPS statement says –

In reaching that conclusion, the review agreed that although there is sufficient evidence to prosecute, it is right to assume that Greville Janner will inevitably be found unfit to plead and therefore not fit to instruct his legal team and not fit to challenge or give evidence in a trial. Therefore the most likely outcome of a “trial of the facts” would be an absolute discharge, which is neither punishment nor conviction.

There will be 22 charges, 7 of buggery and 15 of indecent assault. All are under the Sexual Offences Act 1956, which applied on the relevant dates; that Act preceded the Sexual Offences Act 2003, section 9 of which would apply now.

The DPP’s original decision not to prosecute was based on the evidence of four doctors, who found that Lord Janner has rapidly deteriorating dementia requiring continuous care; that he could not have any meaningful engagement with the court process; that there’s no prospect of recovery; and that it’s “out of the question” that he’s “putting it on”.

That led the CPS to think Janner would inevitably be found not fit to plead, and therefore a criminal trial to determine his guilt could not properly take place. The CPS did consider proceedings to “launch a fitness to plead process” (see paras. 20-21 of the DPP’s original statement) but concluded

that the outcome of such proceedings would not only be without conviction, but would also result in an absolute discharge. The medical evidence establishes both that there is no current risk of re-offending identified and that there is no likelihood of the defendant recovering from his medical condition (and thus that there is no future risk of reoffending either). Balancing these factors with those in favour of prosecution, the balance is that there is not a public interest in commencing criminal proceedings in this case.

It’s also important to mention that she said (para. 22 of the original statement), in relation to the complainants’ wish to tell their stories publicly,

I sincerely hope that this can be achieved through the victims giving evidence before the Independent Inquiry into child sexual abuse. I have referred this to the Inquiry team which has confirmed that this case would be covered by the scope of the Inquiry and that those who have made allegations in this case would be able to give evidence to the Inquiry. They have offered to speak to the complainants to explain this.

The review agrees with the original CPS view that no trial is likely, then; and that an absolute discharge is the probable outcome. It seems David Perry QC has taken the view that prosecution is nonetheless in the public interest because the inquiry “cannot substitute for the adjudication of the courts”.

Alison Saunders has taken a lot of stick over her original decision. One of her recent predecessors Lord MacDonald QC suggested it was wrong. It’s fair to mention, though, that Saunders has also been criticised when the CPS has decided to prosecute sex offences, as well as when it’s not. Many attacked the prosecution of Nigel Evans MP, for instance, and in relation to that case Lord Macdonald is reported as having said

What the CPS needs to avoid … is going on a mission and losing perspective. This particularly applies to historical cases which have garnered a lot of publicity. You have to keep a cool head.

Challenges to the DPP on this subject seem routinely to come from both sides. In this Newsnight interview from last year it’s worth noting that Laura Kuennsberg in her questioning both suggested victims can’t have confidence that the DPP will prosecute historic cases, and that she should focus instead on contemporary allegations. Time and again we see (as I said in my Nigel Evans piece)

how easy it is for armchair critics to attack the CPS (like social workers) for acting, or not acting, or once again for acting – according to the transient Zeitgeist.

It should also be remembered that the CPS’s prosecution of journalists in Operation Elveden was not popular among many of their colleagues. Critics of those decisions must criticise them on their merits, though – not try to avenge them under cover of the Janner case.

Nor, I have to say, can I persuade myself that widespread, varied criticism of Alison Saunders is entirely unrelated to her being a career civil servant, the first DPP who’s not a QC, and female (we’ve only had one woman DPP before, and her Telegraph obituary says she held the post “amid growing controversy about her effectiveness and personal style”).

Saunders’s original decision was entirely reasonable. That fact that she brought in David Perry QC to undertake the review is to her credit – and he has simply taken a different view. We’ll see in due course what a court makes of it.

If we’re to have a right of review (and the the Court of Appeal’s judgment in Killick in 2011 says we must) then this sort of thing is bound to happen. Hundreds of decisions not to prosecute have been reversed under the scheme – this is simply the case with the highest media profile. It’s absurd to think someone should resign when this happens (or when the papers take an interest), and raises the equally silly question whether, if a reviewed case is prosecuted but results in acquittal, the reviewer should resign and the original decision-maker be reinstated.

Of course Alison Saunders should not resign over the Janner case. Her critics will agree the DPP must be independent of political and media pressure; but in this exceptional case they’ll no doubt feel entitled as politicians or journalists to pile pressure on her. Her job, though, is not to make popular decisions, and above all not to bring popular prosecutions.

As the Secret Barrister wrote the other day,

All that a resignation from Alison Saunders means is that any future DPP – and any current CPS charging lawyer – will always militate in favour of prosecuting, out of fear for their security of tenure

and as Lord Pannick QC wrote in the Times in April,

Alison Saunders deserves the support of the legal community against the unjustified attacks she has faced, many of them woefully ill-informed and surprisingly eager to sacrifice the basic fairness to the defendant which is a fundamental feature of the rule of law.

The DPP will be seen to be independent if Alison Saunders keeps her job. I hope she continues in it for some time.

2015-06-29T14:30:50+00:00Tags: , |

Same-sex marriage: the US, Europe and the Obergefell questions

June 25 2015

Elvert Barnes | Creative CommonsThe US Supreme Court’s opinion in Obergefell v Hodges – it may come out today, or next week – will be historic whatever it decides. The main question is whether the Fourteenth Amendment to the US Constitution with its guarantee of the “equal protection of the laws” requires states to allow same-sex marriage.

Either it will be a turning point as famous as Loving v Virginia in the 1960s, defining this human rights issue of our time well beyond the US; or it’ll rule that same-sex marriage is a matter for states to permit or not, not something nine judges sitting in Washington should impose.

As someone who’s happier living under the British constitution (where this sort of issue is decided by Parliament) I’ve some sympathy with what’s seen in America as the “conservative” position, even though I strongly support same-sex marriage. In Britain, same-sex marriage is now permanent and broadly accepted – in large part because Parliament brought it in, rather than a court ruling. I wonder whether a great court victory this June really will be best for lesbian and gay rights in America, in the medium and longer term.

But that’s a political and social view. Courts must answer the legal questions they’re asked, so the Justices can’t merely say who should decide on gay marriage. They have to squarely tell us whether or not its refusal is compatible with the “equal protection of the laws”. If I were among them, I suspect I’d be with Justices Ginsburg, Breyer, Sotomayor and Kagan in saying it’s not. Perhaps the social controversy simply has to be resolved by judges in America’s legal culture, just as Britain’s way of doing it reflects our culture – and as Ireland’s choice of a referendum reflected its distinct constitutional culture, too.

What do I guess will happen? American commentators are focusing on Justice Kennedy, who’s likely to swing the opinion one way or the other. Will he follow the pro-gay marriage logic Justice Scalia saw in his opinion in US v Windsor two years ago? Or the federalist logic Chief Justice Roberts saw in it? My guess is that Scalia’s fears will be realised, and that we’ll be treated to one of Scalia’s most famous and trenchant dissents. But a guess is all it is.

What’s interesting from this side of the Atlantic is how European law would deal with this issue – which brings me to the second legal question in the case, because there’s more than one. They are not only

Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

but, if not,

Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

If the court says “No” to the first question, it will have to answer the second. Must states who forbid it nonetheless recognise same-sex marriage where it’s entered into in other states?

Many American lawyers seem to doubt this question is really capable of a different answer from the first, and there was a feeling during oral argument (which you can hear below thanks to the Oyez Project at IIT Chicago-Kent College of Law) that it had little life of its own. Justice Ginsburg, I noticed, seemed to accept that the “full faith and credit” provision of the Constitution would not require states to accept each other’s laws in the way contended for.

But in Europe the questions may truly be legally distinct. The question whether European democracies must all permit same-sex marriage was decided not long ago by the European Court of Human Rights in Schalk & Kopf v Austria: they don’t have to. The court said (para. 61) that it

would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex …

but that (paras. 61-2)

as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State …

The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society …

This is basically the sort of “federalist” approach that might prevail in Obergefell. If the US Supreme Court leaves same-sex marriage as a matter for states to decide, it’ll essentially be giving them the kind of “margin of appreciation” Strasbourg has allowed European states.

But the second question, about recognition of same-sex marriage lawfully entered into elsewhere, is here a question of EU free movement law, not primarily one of human rights. Article 2 of Directive 2000/38 provides that an EU citizen exercising feee movement rights may be accompanied by his or her spouse, a term which is undefined. And just as in America, some EU states have enthusiastically adopted same-sex marriage while others set their faces against it.

Given the free-movement purpose of the Directive, and given that article 9 of the EU Charter of Fundamental Rights does not (unlike article 12 ECHR) specifically refer to “men and women”, I feel confident the European Court of Justice would rule in favour of what you might call “gay marriage exportability” between EU states. A case must arise one day; and given the proximity of the Netherlands, France, Belgium and Denmark to Germany (which as yet denies same-sex marriage) that case may even, like Schalk & Kopf and Obergefell, have a German name.

Perhaps it’s the multinational nature of Europe that makes the recognition question more separable from the fundamental principle of same-sex marriage than it may be in America; perhaps it’s the institutional division of the two questions between two different courts. If the cases go as I suspect, those will be interesting questions for academics. But I’m getting well ahead of things. We’ll soon know what the Justices say in Obergefell, and which way legal history’s going.

2015-06-25T13:31:09+00:00Tags: , , , , , , , , |
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