“I am in the presence of the Ghost of Christmas Yet To Come?” said Scrooge. “Ghost of the Future!” he exclaimed, “I fear you more than any spectre I have seen.”

In 2020, Theresa May will get to hoist a flag she has long had in preparation, when as part of the Conservative’s manifesto she will get to include a repeal of the Human Rights Act 1998, and its replacement with a (yet to be drafted, but to a degree outlined) British Bill of Rights. What is even more concerning to many, is that she is committed to a path yet more radical than her predecessor David Cameron, in that she also plans to extricate Britain from the European Convention on Human Rights (which would entail inevitable expulsion from the Council of Europe). All this in spite of the Convention’s Conservative origins, and contradictory to a long standing Conservative antipathy to incorporated Bills of Rights; that usually centred on a fear of disturbing Parliamentary sovereignty, and by so doing giving the “unelected courts… the final say in determining what the law should be in a democracy”.

Like all manifesto matters, it will undoubtedly be attractively packaged; having been described as “a pledge to withdraw Britain from the European Court of Human Rights (ECtHR) [and] to give the UK Supreme Court the ultimate say as to how those rights are applied”, and indeed since 2011 it has been touted as a “return to traditional English freedoms” within a framework of “Bringing Rights Back Home”. It originally formed part of Michael Howard’s 2005 election campaign, with David Cameron affirming the pledge in 2006 (alongside emphasising ‘responsibilities’ in addition to rights) when he said:

“The act has stopped us responding properly in terms of terrorism, particularly in terms of deporting those who may do us harm in this country, and at the same time it hasn’t really protected our human rights.”

So given that Brexit means Brexit (whatever that may mean), and to some our exit from the European Union is inevitable, why not, as May and team are spinning her announcement,  just make a clean break of it; the clarity (and in some eyes kudos) of exiting the European Union (baby) and the ECHR (bath water) in one tenure.

Why, given its obvious appeal to anyone with an ounce of red, white or blue flowing through their veins, is it arousing such opposition; and so much of that opposition not only cross-party but from some of the country’s most informed and experienced politicians, judges and academics. We have the likes of Alice Donald, joining academic forces with Mark Elliott, and ex-Attorney General Dominic Grieve to counsel strongly against such a decision; whilst the House of Lords’ EU justice committee in May of last year warned:

“[the] government’s proposed bill of rights will hamper the fight against crime, undermine the UK’s international moral authority and could start “unravelling” the constitution”

Well I think the answer is simple enough, for anyone like Ebenezer Scrooge, that has had the courage to dare to imagine a future, (albeit rather unwillingly in Scrooge’s case, and in our case), outside of the Council of Europe; it is something to be feared, and with good reason.

Lawyers or no, we are often told that the ‘devil is in the detail’, but therein must also lie our salvation, and that is certainly true of the Human Rights Act 1998. It is a very well and subtly crafted Act, and to imagine that it can be easily replaced, is just as illusory as the idea that a well crafted Great Repeal Bill will solve all our Brexit woes.

In October 2014, Mark Elliott cited at least six reasons to be concerned with the Conservative Party’s Protecting Human Rights in the UK, even if (as the proposal suggests) the new Bill of Rights would contain all of the rights presently given effect to by the Human Rights Act:

• Convention rights would be ‘glossed’; though seemingly ‘enhanced’ by new and more precise definitions, the net effect would be a reduced scope of some rights, ‘bastardised versions’ in Elliott’s terms.

• Rights, in some instances, would become ‘contingent’ upon having discharged ‘civic responsibilities’; the example he quotes is:

“so for example a foreign national who takes the life of another person will not be able to use a defence based on Article 8 to prevent the state deporting them after they have served their sentence.”

which is an erroneous conflation of the long-standing Convention principle of ‘balancing’ or ‘qualifying’ rights, with a particular model of ‘cause-and-effect’ quite alien to any modern day system of human rights.

• Section 2(1) of the Act would essentially be eliminated; the Bill looking to “[b]reak the formal link between British courts and the European Court of Human Rights” because “Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg.” This as in many aspects of the proposal fails to capture the actuality, and indeed flexibility of that ‘link’, and suggests the ‘relief from an obligation that they [the courts] do not — and do not believes themselves to — have’.

• The falsity that the Bill will “[e]nd the ability of the European Court of Human Rights to force the UK to change the law” has been discussed in great depth elsewhere; it is simply misleading and as Elliott highlights:

“[the idea that] domestic legislation could change the international-law status of ECtHR judgments is straightforwardly wrong. Parliament can “treat” Strasbourg judgments as ‘advisory’ if it wishes, but it will not make them so.”

It also, yet again, fails to capture the nuanced nature of s. 2 (1)’s ‘take into account’ directive, and seems (one might suggest almost wilfully) to misunderstand the system of ‘declarations of incompatibility’ under Section 4.

• The Bill also sets out to hamstring the courts Section 3 ‘interpretive’ capabilities, stating:

“In future, the UK courts will interpret legislation based upon its normal meaning and the clear intention of Parliament, rather than having to stretch its meaning to comply with Strasbourg case-law.”

Elliott suggests, that this, working in tandem with the Bill’s new and ‘glossed’ Convention rights would have considerable ‘practical impact’ on the availability of human rights in the UK.

• But last but not least, the Conservatives propose establishing a ‘threshold’, before one’s human rights are engaged:

“The use of the new law will be limited to cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters. There will be a threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases.”

This is to say nothing with regard to our International obligations, the impact of the Bill upon devolution, or any potential conflicts with “the increasingly vigorous doctrine of common law constitutional rights”.

A year later in September 2015, former Attorney General Dominic Grieve addressed the Faculty of Advocates in Edinburgh, and asked “Is the European Convention working?”.

Coming just a week after Lord Sumption’s assertion of our nation’s ‘pride in their own separateness’, he attempted to tackle the Bill of Rights’ flouted benefits, which include:

• halting the “mission creep” of Strasbourg
• providing clarification of how Article 3 and 8 should be applied in deportation cases
• setting a threshold “below which Convention rights will not be engaged”
• removing the reach of the Convention over British armed forces

In a characteristically impassioned defence (which can be read in full here), highlighting groundbreaking cases such as Ireland v UK and Marckx v Belgium, he was keen to explore and tease out the parallels between the European Court’s interpretive methods, and our own ‘common law traditions’; but also took a far less parochial stand, seeing the court’s steady but inevitable transformation:

“into a court of final resort for some 800 million people, many of them living in states where the principles underpinning the rule of law are often misunderstood, misapplied or ignored.”

He was also keen to highlight:

“[the] paucity of concrete examples that are identifiable in the Government’s list of complaints against the way the Strasbourg Court is interpreting the Convention and the incoherence of its suggested solutions”

Addressing the shortcomings of the UK Borders Act 2007, much as Mark Elliott above he advanced:

“it is difficult to see how any proposed changes to gloss the Convention text itself will make any difference, unless the intention is to create total incompatibility with its principles”

before going on to specifically deal with the Government’s inconsistencies as regard Article 3 rights, and the positioning these arguments in a much wider, international framework.

By turning our back on the Convention, the UK:

“will offer an example and an invitation for it to be ignored by others. It is already the case that countries such as Russia and the Ukraine have used the UK position to procrastinate on implementing judgments. Others will do the same and the Convention will be further challenged and undermined.”

As One Crown Office Row David Scott has pointed out:

The fallout will not be limited to the Council of Europe. The UK position was used by Venezuela in justifying ignoring obligations under the American Convention on Human Rights arising prior to its denunciation in 2013, and the President of Kenya cited it when the UK and others were pressing for cooperation with the ICC, of which Kenya accepts jurisdiction. Were the Convention as a whole to lose authority, we would also lose its beneficial impact as a “benchmark for citation in courts in places such as India and South Africa”

Alice Donald has pointed out the wide ranging scope and potential of Section 6 of the Act; which is to say nothing of the loss of Section 19, which requires that all new Acts of Parliament are required to come with “statements of [Convention] compatibility” or “make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill”.

Lord Sumption is undoubtedly correct, that these are essentially ‘argument[s] about method’; but there seems to be an overwhelming tide of opinion that the Government’s ‘method’ will result in a seismic shift in our current human rights paradigm. With a consequent narrowing of the scope (indeed a marked narrowing) in some instances, with a complete loss of previously recognised rights in others, that shift is in one direction, and one direction only.

Let’s make no mistake, in simple terms this just equates to less human rights, less ‘check’ on the executive, and on occasions an utter disregard for the notion, which once was considered vital to a modern day understanding of human rights, of ‘balancing’ competing rights.

Essentially making a nonsense of Dominic Grieve’s statement that:

“deservingness cannot be determined a priori.”

this is not ‘human rights with fries’, this is an empty bun, with no hamburger and precious little dressing.

Now no doubt this debate (just as Brexit v Remain has done) will attract its fair share of ‘loaves of opinion’, and precious few ‘crumbs of analysis’, but in contrast to Brexit, in this instance we have the luxury (and after June 23 2016’s referendum it is not to be underestimated) of a three year’s ‘heads-up’; three years to marshal and make public what are quite complex yet highly compelling arguments. That might equate to a sense that we have less room to excuse ourselves from the “I didn’t realise” paradigm, that has haunted the political debate of recent months, but that ultimately has to be seen as a good thing.

Charles Dicken’s most likely made Ebenezer’s final haunting, the ‘last of the spirits’, ‘tall and stately’ for good reason. The writing was on the wall, in large bold copper plate, it was not to be hidden from. Just like Ebenezer we are in the presence of a warning, that is cold and to a degree most chilling, and a warning that is most certainly written in bold copper plate. It is a warning of our Christmas Yet To Come, of all of our Christmases Yet To Come, and we might just be wise to listen carefully to what it has to say.

References:

i. Charles Dickens – A Christmas Carol

ii. Othman (Abu Qatada) v. United Kingdom (European Court of Human Rights) (2012)

iii. The Conservatives – Protecting Human Rights in the UK

iv. https://www.rt.com/uk/372125-may-election-human-rights/

v. http://rightsinfo.org/search/conservative/

vi. Aileen Kavanagh – Constitutional Review under the UK Human Rights Act

vii. Klug F – A Bill of Rights: Do we need one or do we already have one? (2007) Public Law 701

viii. https://www.policyexchange.org.uk/wp-content/uploads/2016/09/bringing-rights-back-home-feb-11.pdf

ix. jackofkent.com/category/brexit/

x. Lorna McGregor – Reclaiming Human Rights – http://rightsinfo.org/reclaiming-human-rights/

Why saving the Human Rights Act will be good for your health – Alice Donald

My analysis of the Conservative Party’s proposals for a British Bill of Rights

xiii. Dominic Grieve – Why Human Rights Should Matter to Conservatives – The Political Quarterly, Vol. 86, No. 1, January–March 2015

xiv. https://www.theguardian.com/law/2016/may/09/british-bill-of-rights-could-unravel-constitution-say-mps

Is the European Convention Working? Grieve advocates before Faculty of Advocates

xvi. http://www.dailymail.co.uk/news/article-3243549/Britain-ditch-European-human-rights-laws-stood-Nazis-says-judge.html

xvii. http://www.advocates.org.uk/media/1859/domgrievelecture.pdf

xviii. IRELAND v. THE UNITED KINGDOM (Application no. 5310/71) 18 January 1978

xix. MARCKX v. BELGIUM (Application no. 6833/74) 13 June 1979

xx. Human Rights Act 1998 – Section 19

xxi. https://www.loc.gov/collections/james-madison-papers/about-this-collection/

xxii. Lord Goff of Chieveley: Hunter v Canary Wharf Ltd [1997] AC 655; 2 ALL ER 426 (HL)

 

http://www.emptykingdom.com/featured/sergey-tyukanov-purgatory

With todays’s piece I think I’m in grave danger of entering the literary minefield of mixed metaphors; as three such metaphors seem to be running through my mind simultaneously, prompted in part by my current studies of the very legally thorny subject of intent, my related reading of the recent case regarding the appearance of Allan Young this week at the Old Bailey (see reference below) and perhaps what I have learned to call (& will be duly writing a piece on) my #fledglinglawyer Magpie Mind.

So let’s see what “hell and high water”, “rock and a hard place” & “bargepoles” have to say for themselves.

Let’s start with “bargepoles”; these (and the expression “I wouldn’t touch that with a bargepole”) came into my mind as I studied the nigh on impossible situation that trial judges have found themselves in as they have attempted to direct juries (with greatly varying degrees of success it must be said) with regard to the requisite “mens rea” to establish the strict intention necessary to transform a manslaughter into a murder. From the “natural consequences” of DPP v Smith [1961], through the “high degree of probability” of Hyam [1975] to the “virtual certainty” of Nedrick [1986] & Woolin [1999] one cannot imagine how tightly the novice judge (and we tend to forget there are such) would have had to hold onto his “bench book” nor how carefully he/she would have needed to scour the 1967 legislation (Criminal Justice Act 1967) or the more recent mooted notions of codification (Law Commission 2006) to feel even half way confident to propound on said subject.

So therefore perhaps not surprisingly, we come to learn this metaphors originates from equally (if not more so) thorny ground.

First specifically referenced in Lady Monkswell’s Diary, 1893:

“It will be a long while before any political party touches Home Rule again with the end of a barge pole.”

It concerned the very current yet highly emotive topic of devolution; whilst some 50 years earlier an obvious precedent can be found concerning social class in Official Magazine of the Grand Lodge of the United States (1843) edited by James L Ridgely:

“But that mushroom aristocracy of our country… who would not condescend to touch a poor man with a ten foot pole, were their extraction traced, in nine cases out of ten they were nurtured in the squalid huts of poverty.”

Which I hope takes us quite comfortably on to the Morton’s fork (see history of this expression below) or more colloquially, the rock and a hard place that is facing the advocates, judges and jurors that are currently gathered at the Old Bailey to consider the fate of Allan Young. In a story that is eerily reminiscent of Woolin, a much younger Young (some 13 years ago in fact), in a fit of pique shook his five week old son Michael Winn leaving him with “catastrophic” brain injuries and ultimately severe disability.

The prosecution are now alleging that his death in 2011, following a bout of pneumonia, came as a “direct result” of said injuries and Young is therefore facing manslaughter charges; Prosecutor Zahid Hussain quoted as saying (at the original trial):

“A post-mortem was conducted on January 29, 2011, and the conclusions from the pathologist are that the injuries inflicted upon the child in 1998 led directly to the death of the child.”

Zoey Johnson QC more recently laying out the causal chain thus:

“There was a cause and effect role between the head injury sustained while Michael was a baby and his death at the age of 12.”

I imagine it will be a complex & prolonged trial; even the the thinking surrounding “shaken baby syndrome” has greatly evolved in recent years with one of its pioneers Dr. Norman Guthkelch challenging the classic triad (of cerebral oedema, subdural haematoma and retinal haemorrhages) and even raising great doubts about causality, recently publishing an article very critical of such prosecutions:

“I wouldn’t hang a cat on the evidence of shaking, as presented.”

he is quoted as saying in Shapiro’s 2011 piece on “Rethinking Shaken Baby Syndrome” (http://www.npr.org/2011/06/29/137471992/rethinking-shaken-baby-syndrome).

In any subsequent appeals it seems highly likely that the judges’ directions (as they often are in such cases) will be subject to microscopic scrutiny as the defence look to break this chain and establish external/third party interventions in Michael Winn’s untimely death.

Most lawyers (including trainees) will be familiar with “hell or high water” clauses and most of us in moments of passion have suggested we would do something/get somewhere “come hell or high water” but in this case the literary association came from a much simpler space; just take one look at Allan Young’s photo as he makes his way to the Old Bailey and if you ever need a visual metaphor for “living hell” you have one.

Honestly I don’t know where I stand on this case. Guilty of something 13 years ago; of course. Guilty of manslaughter 13 years later I think it’s a very hard call to make both medically and legally; in fact it is the tension between these two specialities that both fascinate me and will ultimately determine Young’s fate. I can be sure of one thing only: whatever the outcome I can’t imagine even justice will be able to extract much joy from this tragic and as yet incomplete tale.

References:

http://www.theguardian.com/uk-news/2014/jul/02/father-trial-death-son-12-years-after-shaking-baby?CMP=twt_gu

Crown Court Bench Book & Specimen Directions – Third Edition 2010

Murder, Manslaughter & Infanticide – Law Commission 2006

John Morton; onetime Archbishop of Canterbury and ultimately Lord Chancellor under Henry VII was quoted as saying: “If the subject is seen to live frugally, tell him because he is clearly a money saver of great ability, he can afford to give generously to the King. If, however, the subject lives a life of great extravagance, tell him he, too, can afford to give largely, the proof of his opulence being evident in his expenditure.”

Problems of infant-retino-dural haemorrhage with minimal exertional injury – AN Guthkelch (Houston Journal of Health Law & Policy ISSN 1534-7907)

 

 

St. Sebastian – Andrea Mantegna (1490)

Any University of London LLB student that has had the time and good fortune to get their head/s around (what was historically a core text for our First Year CLRI studies) Gearey et al.’s The Politics of The Common Law will be left in doubt that the law is inherently political and politics/politicians can somehow never escape the watchful eye of the Rule of Law.

Students or #fledglinglawyers that have never quite been able to grasp this as a concrete/pragmatic notion could do far worse than read Nick Davies account of the very recently concluded “trial of the century”:

http://www.theguardian.com/uk-news/2014/jun/25/-sp-phone-hacking-trial-rebekah-brooks-rupert-murdoch 

Brave investigative journalism aside (Davies is also author of Flat Earth News); it throws a very bright and erudite light on the often unexplored tension that exists between politics and the media and by default the legal system and the media. I won’t attempt to paraphrase, as it is a piece that deserves to be read and relished in its entirety; not the least for the Rolls Royce defence team analogue, the description of Timothy Langdale QC as “a model of old-school courtesy built around a core of steel” but ultimately for this paragraph in which he documents the slow unravelling of prosecution witness Eimar Cook:

“Cook told the jury she recalled a conversation at lunch in September 2005, when Brooks had not only warned her that her own phone might be hacked but had described the ease with which it could be done. Cook added that during the same lunch, she thought Brooks had discussed the famous incident when she had been arrested for assaulting her then partner, the actor Ross Kemp. Laidlaw gently pawed her into position, confirming without doubt the date of the lunch, challenging the strength of her memory until she insisted she was absolutely certain and then, like Hannibal Lecter in a horsehair wig, softly and courteously, he cut out her heart: the incident with Kemp had happened six weeks after the lunch. Her story could not possibly be right.”

Mads Mikkelson – season 1 episode 10 Hannibal NBC 

The backdrop to this story; (Murdoch’s bid to acquire BSkyB; Coulson’s involvements with Cameron (and that’s another story for another day) and Brooks’ masterful positioning of herself as an “ally to the elite”) has to be studied and ultimately digested to be believed. Indeed with its baffling yet subtle complexities but nonetheless inherent elegance it is not that dissimilar (though of equally dubious origin) to some of the exquisite meals that are served up in any episode of Bryan Fuller’s Hannibal (NBC).

Incredibly; Murdoch’s News Corp, (in spite of phone-hacking related legal bills in excess of 270 million pounds since 2011) has actually made money from this realignment/restructuring with shares up more than 1% following the verdict (see Financial Times June 24th 2014: Hacking trial: Rupert Murdoch comes out on top despite legal bills).

So whilst 25th June was a “great day for red tops” (Sun’s headline: 25th June 2014), Essex boy Andy Coulson is facing a custodial sentence & one can’t help but be left wondering whether it was a great day for British justice or not. One thing that we can’t be left doubting (as Michael White quotes in “Why it’s OK to feel sorry for Andy Coulson”) the words of the old music hall songs never seem to fade:

“it’s the rich what gets the pleasure, it’s the poor what gets the blame”

Compared by her (Brooks’) pre-trial lawyer to St. Sebastian; this is one blogger and #fledglinglawyer that thinks that maybe sometimes you can stretch your analogues that little bit too far.

Where now; well probably off to prison for Mr. Coulson & back to business as usual (plus the memoir royalties) for Ms. Brooks; we’ve already considered Mr. Murdoch. For myself; as a long time boxing fan I have always relished the re-match; so I am personally praying for a retrial… my choice for prosecution counsel… no doubt would  have to be (after all the appropriate training and Bar Council validation was in place) none other than Hannibal Lecter QC; at least then it might be something approaching a fair fight.

“Great day for red tops”: http://www.thesun.co.uk/sol/homepage/news/5713997/rebekah-brooks-cleared-by-phone-hacking-trial.html

Flat Earth News by Nick Davies (Vintage/B00C6PAMBE)

Hacking trial: Rupert Murdoch comes out on top despite legal bills: http://www.ft.com/cms/s/0/85b4beae-ebc8-11e3-8cef-00144feabdc0.html#axzz35oIZxkRK

“Why it’s ok to feel sorry for Andy Coulson”: http://www.theguardian.com/uk-news/2014/jun/25/why-feel-sorry-andy-coulson

http://islandrepublicofdan.blogspot.hk

I think it might be a generality, if not quite an universality, that most of us find the idea of faceless crime disturbing; whether it be the internet hacker that empties our bank account and/or steals our online identity, the pseudonym-ed “troll” that abuses and harasses via a variety of internet portals to the masked burglar or at worst bank robber. But this week brought news of a potentially even more disturbing trend (http://www.theguardian.com/commentisfree/2014/jun/05/britain-first-secret-trial-rights) as reports trickled through of Britain’s first ever potentially trial to be held (at the request of the prosecution) totally “in camera” (i.e. in secrecy; with non-disclosure of the defendants’ details and no media access).

At odds with the very fundamentals of the “rule of law”; it would not be a first.

Very questionable practice fell under the radar during the “height of the Northern Ireland” conflict (see “Trial of AB and CD part of creeping move towards secret justice” Guardian Thursday June 14th) with “what happens at Long Kesh stays at Long Kesh” being very much the flavour of the day, while 2005 and 2008 (with the trials of Salahuddin Amin and of Rangzieb Ahmed respectively) saw evidence being presented “in camera” (rather more accurately “off camera”!!!) to protect the identity of various secret service members in Pakistan whilst a very erudite & recent piece by Lord Phillips (http://www.lrb.co.uk/v36/n08/nicholas-phillips/closed-material) reminded us of some of the obfuscations surrounding the case of Wang Yam (R v Wang Yam [2008]).

But this case (which was to be known simply as R v AB & CD) threatened to take things to a whole new level; an entire trial was to be faceless, to be held “in camera” and therefore potentially to be publicly unaccountable; quite rightly it prompted outrage both within the legal profession:

(a) “disgraceful departure from recognised trial standards and an affront to the rule of law”

Baroness Helena Kennedy QC

and without:

“We submit that the orders made involve such a significant departure from the principle of open justice they are inconsistent with the rule of law and democratic accountability.”

Anthony Hudson (Guardian)

So much so that it was appealed and (as yesterday’s judgement confirmed) overturned with Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett naming the two defendants (as Erol Incedal and Mounir Rarmoul-Bouhadjar) and declaring “that some of the opening speeches of the trial and the final verdicts could be held in open court”.

It was/is a landmark decision in that once sanctioned a very disturbing precedent would have been set and once you have ABC, well the rest is the stuff of Motown legend.

For details of the fascinating case of Wang Yam and the idea of “public interest immunity” see: http://theoldbailey.wordpress.com/2008/10/20/r-vs-wang-yam-2008-and-the-pii-certificate/

“A B C it’s easy as, 1 2 3…” from: ABC (Motown/1970) – Jackson 5