Cambridge Journal of International and Comparative Law
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© 2013 Cambridge Journal of International and Comparative Law and Contributors This issue should be cited as (2013) 2(1) C.J.I.C.L. http://www.cjicl.org.uk
i Editorial Board 2012-13
Editors-in-Chief JasmineMoussa BartSmitDuijzentkunst
Managing Editors JastineBarrett EmmaBickerstaffe DanielCostelloe CameronMiles Sidney Richards
Managing Editor of the UK Supreme Court Annual Review Shona Wilson
Secretary and Treasurer Yin Harn Lee
Editors Ielyzaveta Badanova Philippe Boisvert AnnSofieCloots DanielClarry TatyanaEatwell CallistaHarris GodsgloryIfezue KrishnaKakkaiyadi BulbulKhaitan LawrenceLi DemetrioMaltese AnaJúliaMaurício NatasaMavronicola ThomasMiller RowanNicholson MariaRajabali MaryRoberts ChristopherSargeant EstelleWolfers JureZrilic
CJICL Blog Team DanielCostelloe NaomiBurke ValentinJeutner RobinMorris
ii Academic Review Board
Honorary Member and Senior Treasurer PROFESSOR JAMES CRAWFORD SC LLD, Whewell Professor of International Law at the University of Cambridge and Barrister at Matrix Chambers
Members
DR GEERT DE BAERE, Assistant Professor DR DOMINIC DE COGAN, Leverhulme at Katholieke Universiteit Leuven Early Career Research Fellow, Birmingham Law School DR FREYA BAETENS, Assistant Professor at Leiden University MR ZACHARY DOUGLAS, Associate Pro- fessor at the Graduate Institute, Geneva, and DR JOHN BARKER, Fellow of the Lauter- Barrister at Matrix Chambers pacht Centre for International Law and Fel- low of Hughes Hall DR MATTHEW DYSON, College Lecturer in Law at Trinity College, University of Cam- PROFESSOR CATHERINE BARNARD, Pro- bridge fessor and Jean Monnet Chair of European Union Law at the University of Cambridge, PROFESSOR CHARLES GARRAWAY, Fel- Co-director of the Centre for European Legal low, Human Rights Centre, University of Es- Studies and Fellow of Trinity College sex; Former Stockton Professor, United States Naval War College DR LORAND BARTELS, University Senior Lecturer, University of Cambridge and Fel- DR MARKUS GEHRING, University Lec- low of Trinity Hall turer; Deputy Director, Centre for European LegalStudies; andFellow ofHughesHall, Uni- PROFESSOR JOHN BELL, Professor of Law versity of Cambridge at the University of Cambridge, Fellow of Pembroke College and Editor of the Cam- DR JOANNA GOMULA-CRAWFORD, Fel- bridge Law Journal low of the Lauterpacht Centre for Interna- tionalLawandVisitingReaderatQueenMary MSMARIE-CLAIRECORDONIERSEG- College, University of London GER, Senior Legal Expert, International De- velopment Law Organization DR TOM GRANT, Research Fellow, Lauter- pachtCentreforInternationalLawandFellow DRANTHONYCULLEN,ResearchFellowin of Wolfson College International Law at the University of Leeds
iii PROFESSOR CHRISTINE GRAY, Professor DR ROGER O'KEEFE,UniversitySeniorLec- ofInternationalLawattheUniversityofCam- turer at the University of Cambridge and bridge and Fellow of Trinity College Deputy Director, Lauterpacht Centre for In- ternational Law DRDOUGLASGUILFOYLE,SeniorLecturer at University College London DR ALEX OUDE ELFERINK, Deputy Di- rector and Associate Professor, Netherlands DR PETER HARRIS, Reader in Tax Law and Institute for the Law of the Sea, Utrecht Uni- Fellow of Churchill College, University of versity Cambridge DR TIINA PAJUSTE, Research Associate at DR GLEIDER I HERNÁNDEZ, Lecturer at the Lauterpacht Centre for International Law the University of Durham DR KATE PARLETT, Associate, Freshfields DR JESSIE HOHMANN, Lecturer in Law, Bruckhaus Deringer Queen Mary, University of London DR SOLÈNE ROWAN, Fellow and College DR DANIEL JOYCE, Lecturer at the Univer- Lecturer in Law, Queens' College, University sity of New South Wales of Cambridge
MS JODIE KIRSHNER, University Lecturer, DR SURABHI RANGANATHAN, Junior Re- University of Cambridge and Fellow of Peter- search Fellow in Public International Law, house King's College, University of Cambridge
DR FRANCESCO MESSINEO, Lecturer at MS EVGENIYA RUBININA, Associate, the University of Kent Freshfields Bruckhaus Deringer
DR MARKO MILANOVIC, Lecturer at the PROFESSOR PHILIPPE SANDS QC, Pro- University of Nottingham fessor of Law at University College London and Barrister at Matrix Chambers DR ALEX MILLS, Lecturer at University Col- lege London MR ANDREW SANGER, Founding Editor- in-Chief and Doctoral Candidate, University MS EVA NANOPOULOS, College Teaching of Cambridge Officer, Sidney Sussex College, Cambridge MR DANIEL SAXON, York Distinguished MS PENELOPE NEVILL, Tutor at King's Visiting Fellow, University of Cambridge and College London and Barrister, 20 Essex Street Visiting Fellow, Wolfson College
DR SARAH NOUWEN, University Lecturer, DR JILLAINE SEYMOUR, Fellow and Col- University of Cambridge and Fellow of Pem- lege Lecturer in Law, Sidney Sussex College, broke College University of Cambridge
iv PROFESSOR MALCOLM SHAW QC, Pro- DR SANTIAGO VILLALPANDO, Legal Offi- fessor of International Law, Senior Fellow of cer at the Codification Division of the United the Lauterpacht Centre for International Law Nations Office of Legal Affairs and Barrister at Essex Court Chambers DR MICHAEL WAIBEL, University Lecturer PROFESSOR JOHN SPENCER QC LLD, Professor of Law, Co-director of CELS, Uni- at the University of Cambridge and Fellow of versity of Cambridge and Fellow of Selwyn Jesus College College PROFESSOR MARC WELLER, Professor of MR CHRISTOPHER THOMAS, Lecturer in InternationalLaw andInternationalConstitu- Law at the London School of Economics and tional Studies at the University of Cambridge Political Science and Director of the Lauterpacht Centre for DR KIMBERLEY TRAPP, Lecturer at Uni- International Law, University of Cambridge versity College London DRRALPHWILDE,ReaderatUniversityCol- DR SOPHIE TURENNE, Neil Allam/Clifford lege London Chance Lecturer in Law, University of Cam- bridge and Fellow of Murray Edwards MS RUMIANA YOTOVA, Founding Editor- in-Chief and Doctoral Candidate, University DR ISABELLE VAN DAMME, Référendaire of Cambridge at the European Court of Justice
PROFESSOR GUGLIELMO VERDIRAME, MR SHENG ZHANG, Xi'an Jiaotong Uni- Professor of Law at King's College, University versity of London
v Volume 2 C.J.I.C.L. [2013] Issue 1
The UK Supreme Court Annual Review Table of Contents
Editor's Introduction 1 Shona Wilson Foreword 3 Matthew Ryder Part I: Commentary and Reflections Judicial Diversity: Where Do We Go From Here? 7 Shona Wilson Intervention at the UK Supreme Court 16 Lorne Neudorf Creativity in the Supreme Court 2011-12 33 Brice Dickson The Structure of Supreme Court Judgments: Eleven Ways to 41 Leave One's Mark Chris Hanretty The Selection of the Major Premise 47 William Gummow ‘A Most Difficult Case': On the Ratio of Gnango 60 Findlay Stark Scotland and the Supreme Court 67 Lord Drummond Young
vi Part II: Thematic Analysis Protecting the Interests of the Child 77 Godsglory Ifezue and Maria Rajabali Criminal Law, Evidence and Procedure 86 Tatyana Eatwell and Christopher Sargeant European Dimensions 96 Demetrio Maltese and Rowan Nicholson Social Welfare 103 Ielyzaveta Badanova and Ann Sofie Cloots Treaty Interpretation before the Supreme Court 113 Callista Harris and Krishna Kakkaiyadi
Part III: The 2011–12 Legal Year in Overview Overview: Civil Procedure 121 Jure Zrilic Overview: Constitutional and Administrative Law 125 Philippe Boisvert Overview: Criminal Law 128 Estelle Wolfers Overview: Economic and Safety Regulation 131 Thomas J Miller Overview: European Law 136 Ana Júlia Maurício Overview: Family Law 140 Natasa Mavronicola Overview: Human Rights 145 Bulbul Khaitan Overview: Immigration Law 150 Mary Roberts Overview: International Law 154 Mary Roberts Overview: Local Government 157 Philippe Boisvert
vii Overview: Private Law 160 Lawrence Li Overview: Tax Law 165 Ana Júlia Maurício
Part IV: Composition and Statistics AppendixA:CompositionoftheSupremeCourt 168 AppendixB:Statistics 170
viii DOI: 10.7574/cjicl.02.01.91 Cambridge Journal of International and Comparative Law (2)1: 1–2 (2013)
Editor’s Introduction
Shona Wilson*
This special edition of the Cambridge Journal of International and Comparative Law follows the tradition set by last year's edition, and that of the Cambridge Student Law Review which preceded it. The volume summarises the output of the UK Supreme Court during the legal year 2011-12, both in depth (in Part II) and in short summaries (in Part III). We are particularly proud to provide, in Part III, what we believe to be the only comprehensive published summary of every Supreme Court judgment from the last legal year. In his foreword, Matthew Ryder QC gives a fascinating overview of the role of the Supreme Court, now firmly established in our legal system. He notes the interaction of the Supreme Court with social media and public debate, highlighting that the Court has embraced such outputs to provide more transparency than ever before. PartIofthisvolumecontainssomethoughtsonaspectsoftheSupremeCourt from established scholars and judges, as well as my own modest contribution. My article examines judicial diversity in the wake of recent comments made on the subject by Lord Sumption. In an article which is sure to generate a lot of interest, Lorne Neudorf discusses the topical issue of interveners in the Supreme Court, with comparative studies from the more advanced rules and commentary on interveners in the Supreme Courts of both the United States and Canada. Brice Dickson contributes his invaluable thoughts on creativity in the Supreme Court across various legal areas during the past legal year, noting that judicial law-making remains more `evolutionary than revolutionary'. The structure of Supreme Court judgments is analysed by Chris Hanretty, who draws novel conclusions on how judges can make their `mark' on a case and highlights areas for future research which are awaited with great interest. A discussion of the style of judgments is continued by former Justice of the Australian High Court, William Gummow, who presents his thoughts on the selection of the major premise, viewed from both a United Kingdom and Australian perspective. Continuing the theme of a lack of cohesion in judgments, Findlay Stark provides a case note critiquing one of the most notable (and controversial) criminal cases
* Managing Editor, UK Supreme Court Annual Review.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 2 Shona Wilson from the Supreme Court in the last year (and, indeed, in the Court's existence so far), R v Gnango. Finally, Lord Drummond Young provides a candid perspective from north of the border on recent Scottish cases to reach the Supreme Court. Part II contains some thematic analyses of the jurisprudence of the Supreme Court from the 2011-12 legal year, arranged by area of interest. Part III contains briefer summaries of every case the Supreme Court heard that year, once again organised by subject area. Finally, the Appendices contain what we hope to be useful statistics compiled from data gathered from all cases heard by the Court in 2011-12. I would like to extend my gratitude to all of our authors who contributed articlestoPartIofthisissue. Thesecontributionsfrom establishedauthorsarean essentialadditiontothisvolume,andIwishtothankthemallfortakingtimefrom their already busy schedules to contribute to our journal. I am truly grateful that they found the time to support our journal in this way. Thanks are particularly due to Lorne Neudorf, who not only contributed his own fascinating article, but also, as Managing Editor of the previous Supreme Court Review, took time to pass on a wealth of invaluable information. Special thanks also to Findlay Stark, who not only provided an article, but also a lot of moral support throughout the process. I would also like to thank all of the editors who worked hard in authoring their own pieces, as well as copy-editing their colleagues' work. The output in Parts II and III of this volume result entirely from their labours, and their assistance in copy-editing the Part I articles was also very much appreciated. I am also grateful to our Editors-in-Chief, Bart Smit Duijzentkunst and Jasmine Moussa, for their unwavering support during the production of this special edition. Thank you also to Managing Editors Jastine Barrett, Emma Bickerstaffe, Daniel Costelloe and Cameron Miles for organising the teams of editors and supervising their work. Managing Editor Sidney Richards undertook the tremendous task of working on the technical side of this issue, and is it no exaggeration tosaythatthiswork would notexistwithouthisdedication. Finally, thanks are due to Ben Wilson, Head of Communications at the Supreme Court, for providing invaluable feedback on the entire content of this special edition prior to publication. The respective authors remain responsible for any errors or omissions in their articles. The Cambridge Journal of International and Comparative Law hopes that this special edition carries on the tradition of providing a valuable source of information and a stimulus for discussion on the jurisprudence and structure of the Supreme Court. DOI: 10.7574/cjicl.02.01.90 Cambridge Journal of International and Comparative Law (2)1: 3–6 (2013)
Foreword
Matthew Ryder*
On 6 February 2012, the UK Supreme Court joined Twitter. A year later, the Supreme Court's official account had 30,000 followers—still a fraction of that of the average pop star—but, for practitioners and commentators, it has become an invaluable way to stay up to date with every announcement and breaking judgment. The Supreme Court now also has a YouTube account, complimenting the live broadcasts of hearings, so that highlights can be viewed online at any time. The use of new forms of media and technology extends to the submissions themselves: during lastyear'shearings, the Justices pointedly reminded advocates of the importance of referring to the electronic bundles of submissions and authorities, not just the bound volumes. And in November 2011, to the dismay of the more atavistic members of the English Bar, the Supreme Court allowed advocates (by consent) to dispense with wearing wigs and robes. It is, without doubt, a distinctly modern court. ThoseofuswhowriteabouttheSupremeCourthaveobservedthesechanges with interest. When lawyers from Matrix chambers and Olswangs solicitors started the UK Supreme Court Blog (UKSCblog.com) in 2009, it was partly because we expected the Supreme Court to modernise its way of working. But using Twitter, YouTube and other forms of new media are merely part of the Supreme Court's broader agenda to make the way it functions as transparent as possible. It has done so with confidence and determination. This is illustrated most powerfully by the way in which the Justices talk publicly about their work. When asked about the most significant feature of the Supreme Court, several Justices have focused on its openness.1 Superficially, this refers to the ease with which the public can now access permission decisions, hearing dates and the judgments themselves. Visiting the renovated building in Parliament Square has been made as welcoming as possible. It is a very different experience from attendingthecrampedhearingsoftheJudicialCommitteeoftheHouseofLords.2
* Queen's Counsel, Matrix Chambers and co-founder and editor of the UKSCBlog. 1 See, for example, Lady Hale's speech at Sheffield University, 12 March 2012; or Lord Reed's speech `The Supreme Court: an inside view' at Balliol College, Oxford University, 11 February 2013. 2 One of the most entertaining speeches on the difference between working in the Judicial
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 4 Matthew Ryder
But the openness and transparency of a modern approach has a further dimension. It includes the Justices deconstructing, in general terms, the decision making process itself. This has enabled practitioners and commentators to understand more clearly how the Justices formulate their judgments and how they reach consensus. For example, Lord Reed in a recent speech at Oxford University,3 explained the meetings the Justices have before hearings and the way inwhichearlydiscussionsonthecasesarealmostlikeseminars. Healsodiscussed the multiple drafts that judgments go through, and how areas of dissent and further discussion are highlighted. Similarly, the new President of the Supreme Court, Lord Neuberger, set out his views on the writing of judgments in a speech for BAILII,4 the publishers of free transcripts of court judgments.5 Lord Kerr, after dissenting in a number of recent cases included in this volume,6 spoke publicly about whether dissenting judgments perform an important role or are merely judicial indulgence.7 For practitioners and academics intrigued by how ferocious legal thinkers re- solve difficult questions of law, such speeches are fascinating. More importantly, these speeches have become part of a broader discussion on how legal writing can be improved and simplified, and what can be discerned from looking at the judgments as a whole, not just individually. The commentary and reflections in this volume are part of that discussion: William Gummow's `The selection of the major premise' considers the Supreme Court's style of writing judgments that do not start with a major premise and the dangers of such an approach. Chris Han- retty in `The structure of Supreme Court judgments: eleven ways to leave one's mark'looksat`joiners'and`isolationists'withintheCourtandhowthatmayaffect outcomes. Professor Brice Dickson contemplates the nature of legal innovation and imagination within the Supreme Court's judgments of the last legal year in
Committee of the House of Lords and the changes caused by the move to the Supreme Court is Lord Hope's `Taking the case to London—maybe it's not over after all' at the Edinburgh Centre for Commercial Law, 12 March 2010. 3 See above n 1. 4 British and Irish Legal Information Institute,
`Creativity in the Supreme Court 2011-12'. Significantly, the Justices' willingness to speak publicly about their work has led to them discussing not simply the mechanics of how they draft their judgments, but also the wider issues that affect the administration of justice. Sometimes this touches on politics and policy. In recent months, the Justices have given speeches on a variety of such topics: the value of the Supreme Court to all of the UK (in response to political comment that criticised the Court for being too focused on England);8 the potential impact of changes to legal aid on the most vulnerable in society;9 the importance of a strong executive and judicial restraint;10 the dangers of policies that would limit judicial review;11 and the UK's relationship with the European Court of Human Rights (ECtHR).12 British judges did not grow up in a legal environment that expected them to give their opinions on difficult issues outside court, but that is changing. These contributions have been valuable in allowing the executive and the legislature to seeimportantissuesfromthejudiciary'sperspective. Attimestheircommentsare forthright and even critical, but it is a tribute to the care and clarity with which the Justices have engaged in such debate that, thus far, they have done so without tarnishing their prized reputation for political independence. Reflecting on the cases considered over the last legal year illustrates the importance of that independence. This volume discusses cases in which the Justices considered the extent to which ECtHR decisions must be followed by the Supreme Court;13 the deference that the Supreme Court had to give to decisions of the Scottish Parliament in altering principles relating to personal injury claims;14 how far the Article 8 rights of children may prevent the extradition of their parents;15 and a range of other cases involving fundamental tensions between the wishes of the executive and the rights of individuals or the interests
8 Lord Hope, SASO Annual Conference, Lord Rodger of Earlsferry Memorial Lecture, 19 November 2011. 9 Lady Hale, Sir Henry Hodge Memorial Lecture, `Equal access to justice in the big society' 28 June 2011. 10 Lord Sumption, F A Mann Lecture, `Judicial and political decision-making: the uncertain boundary', 8 November 2011. 11 LordNeubergerandLordHope,inoralevidencetotheHouseofLordsConstitutionCommittee, 13 February 2013. 12 Lady Hale, `Argentoratum locutum: is Strasbourg or the Supreme Court supreme?' Human Rights Law Centre Annual Lecture, University of Nottingham, 1 December 2011. 13 R (Quila) v Secretary of State for the Home Department; R (Bibi) v Secretary of State for the Home Department [2011] UKSC 45. 14 AXA General Insurance Ltd v The Lord Advocate and others [2011] UKSC 46. 15 HH and PH v Deputy Prosecutor of the Italian Republic of Genoa [2012] UKSC 25. 6 Matthew Ryder of companies. The Supreme Court also had to adjudicate on legal issues that were deeply interwoven with subject matter in the public spotlight, such as the extradition of WikiLeaks founder, Julian Assange, to Sweden;16 or disclosure of information by private investigator Glen Mulcaire, formerly employed by the News of the World, to victims of phonehacking.17 Perhaps most interestingly, the increased profile of the Supreme Court has coincided with growing concerns about the selection of the judiciary, which the Justices themselves have taken on. The current President of the Supreme Court hasbeenexplicit: `Whyare80/90%ofourjudgesmale? Itseemsthatonstatistical grounds we don't have the best people.'18 Shona Wilson's contribution to this volume, `Judicial diversity: where do we go from here?' covers this important debate. Even if views differ on how to solve that problem, it seems clear that the Supreme Court realises that modernity is not simply about engaging with tech- nology and participating in public debate. The same determination, creativity and confidence that has helped increase transparency and improve the working of the Court will be needed if we are to maintain judges of the highest quality, at all levels, but who also better reflect the diversity of modern Britain.
16 Assange v Swedish Prosecution Authority [2012] UKSC 22. 17 Phillips v Mulcaire [2012] UKSC 25. 18 Lord Neuberger, evidence before the House of Lords Committee on Judicial Diversity and Appointments reported in The Guardian, 16 November 2011. DOI: 10.7574/cjicl.02.01.89 Cambridge Journal of International and Comparative Law (2)1: 7–15 (2013)
Judicial Diversity: Where Do We Go From Here?
Shona Wilson*
1 Introduction
In 1966, Lord Scarman declared that the common law stood `little chance of survival'.1 For Scarman, uncharacteristically liberal for a judge of his era,2 one reason for the common law's predicted demise was a lack of judicial diversity. This, at a time when society was becoming ever more disparate in its views, backgrounds and ethnicities, was seen by Scarman as a huge problem. He felt that `law made by lawyers' was no longer acceptable since modern society had a `wide-ranging social structure' for which judges could no longer speak.3 This note briefly outlines some limited improvements in judicial diversity over the ensuing decades which rendered Lord Scarman's views overly pessimistic. However, full judicial diversity still appears to be a long way off. The issue is currently particularly topical given recent comments made by Lord Sumption at the 2012 Bar Council Law Reform Lecture, which are sure to stir up debate. This note therefore goes on to provide an analysis of Lord Sumption's views, together with some alternative thoughts on the issue of diversity and how best to achieve it.
2 Some progress
Someprogresshasbeenmadeinincreasingjudicialdiversitysincethe1960s. This has, however, been somewhat limited, particularly in the higher reaches of the
* PhD Candidate, Girton College, University of Cambridge. I am grateful to Findlay Stark for comments on an earlier draft. 1 Lord Scarman, `Codification and judge-made law: a problem of co-existence', Birmingham University Lecture (1966) 2. 2 Lord Hope of Craighead, `Do we still need a Scottish Law Commission?' (2006) 10 Edinburgh Law Review 10, 17. 3 Scarman, above n 1, 18.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 8 Shona Wilson judiciary. The Supreme Court still has only one female Justice, and no ethnic minorities or other under-represented groups. Lady Hale has been vocal in her views that more diversity is required, opining that she should not `stick out like a bad tooth', like she feels she does at present.4 Nevertheless, the limited progress made must be acknowledged.
2.1 Judicial appointments
Both England and Scotland have, fairly recently, had a radical overhaul of the selection process for judges. Judicial selection is now much more transparent. In Scotland, the Judicial Appointments Board was introduced in 2002 `to bring transparency to the selection process and to build a system in which the public, the profession and the politicians can have trust and confidence'.5 In England, the Constitutional Reform Act 2005 (2005 Act) established the Judicial Appointments Commission (JAC),6 which is now responsible for appointing judges. The selection of judges was previously within the remit of the Lord Chancellor, who made his decisions based on the `soundings' of existing judges.7 This system was subject to a lot of criticism from the mid-twentieth century for its `systematic bias'8 whereby `white Oxbridge males selected white Oxbridge males'.9 The system has gradually shifted towards an application-based system since 1995 and is now completely transformed. The 2005 Act specifically enshrines in law that appointments must be made `solely on merit',10 but that regard should also be had to the need for diversity in the pool of candidates available for selection.11 This new process has not been immune from criticism,12 but it is preferable to the previous model.
4 House of Lords Select Committee on the Constitution, `Judicial appointments process: oral and written evidence' (2012) 265. 5 Judicial Appointments Board website,
2.2 Legal education Darbyshire has noted that from around the second half of the twentieth century, judges were routinely lampooned in the media and generally subject to criticism for their `narrow social background'.13 Her recent in-depth study of modern judges shows that the large proportion of `Baby Boomer' judges have improved the diversity of the judiciary.14 Far from all being from one set of society, of her sample of English judges across a range of courts, only around half were privately educated,15 and around half went to Oxbridge.16 This increased diversity is undoubtedly partly due to the more accessible tertiary education opportunities which emerged in Britain in the second half of the twentieth century, including more grants for university study.17 Darbyshire found that the `era of expanding legal education' meant that 66 of her 77 sample judges were first-generation lawyers.18 Darbyshire was not, however, completely content with judicial diversity. She conceded that the stereotype of judges being `old, white and male' was true in the main—it was only the further cliché of being `privileged, elitist, insensitive and out-of-touch' which was no longer accurate.19 There are no corresponding Scottish statistics, but it may be presumed that similar changes to legal education have resulted in similar, limited diversification.20
3 Lord Sumption's lecture
In a bold move for one of the newer members of the Supreme Court,21 Lord Sumption raised the thorny issue of judicial diversity in the annual Bar Council Law Reform Lecture in November 2012.22 In introducing his lecture, he
13 Ibid, 34-35. 14 Ibid, 7. 15 40 out of 77: ibid, 45. 16 35 out of 77: ibid. See also 46, where Darbyshire moots that `it should not be a surprise, or a subject of criticism, that judges in the highest courts are educated at elite universities' since `[i]t would surely be a matter of concern if senior judges were not highly educated and exceptionally intelligent'. 17 Ibid, 49. 18 Ibid, 51. 19 Ibid, 42. 20 See Hope, above n 2, 23-24. 21 Lord Sumption was sworn in as a Justice on 11 January 2012. 22 Lord Sumption, `Home truths about judicial diversity', Bar Council Law Reform Lecture (2012)
23 Ibid, 1. 24 There are twice as many women in the judiciary today as there were in 1998, and three times as many ethnic minorities: ibid, 2. 25 Ibid. 26 Ibid. 27 Ibid. 28 Ibid, 3. 29 Ibid, 6 and 8. 30 Ibid, 10. 31 Ibid, 1. 32 Ibid, 9. 33 See above n 24. Judicial Diversity 11
In fact, Lord Sumption argues that, had the old system continued, it could have potentially led to more diversity. The Lord Chancellor's way of operating was sufficiently opaque that he could have made selections based on any reason hewished(includingtheneedfordiversity)andtheywouldnothavebeenopento challenge.34 Lord Sumption does not endorse this method ofincreasing diversity, but it is interesting that he is not as critical of the old system of selection as one might expect a former member of the JAC to be. He also notes that although the current judiciary's influence on the selection process has been `diluted [... ,] it has not been eliminated'.35 Lord Sumption argues that since interviews are only a `snapshot',36 the opinions of judges are still welcome. It is worrying, therefore, that Lord Sumption goes on to observe that when giving `soundings' to the Lord Chancellor under the old system, it would be `foolish to pretend that [judges] were not occasionally influenced by unconscious stereotyping'.37 Recently, Lord Neuberger has expressed his concern at the possibility of a `subconscious bias' in appointments panels.38 Plus ça change, plus c'est la même chose.
3.1 Lord Sumption's two options Lord Sumption paints a bleak picture of the possibilities of achieving a more diverse bench. We are told that we essentially have two options. First, we continue to appoint solely on merit and wait for change to occur gradually, as has already been happening. If we are patient, we will `eventually' have a fully diverse judiciary which correlates exactly with societal make-up.39 Lord Sumption estimates that this would take 50 years.40 We are, says Lord Sumption, `simply deluding ourselves' to think that if we continue to select solely on merit that diversity will be achieved more quickly than that.41 The second option, if we want to speed up the process of diversification, is to give genuine consideration to adopting a system of positive discrimination. Lord Sumption is personally not in favour of such action, citing the common reasons advanced against positive discrimination: it dilutes the standard of those
34 Sumption, above n 22, 15. 35 Ibid, 7. 36 Ibid. 37 Ibid. 38 O Bowcott, `Britain's most senior judge takes aim at gender imbalance' The Guardian, 5 March 2013. 39 Sumption, above n 22, 9. 40 Ibid, 14. 41 Ibid. 12 Shona Wilson appointed;42 it devalues the esteem of the position;43 it is patronising to the candidate who is appointed;44 and (so obvious that Lord Sumption does not appear to expressly state it) it is unfair to the (better) candidate who loses out. He does, however, think this solution should be at least debated, since it is the `only thing that is likely to accelerate the rate of progress significantly'.45 Therein lies the problem—is positive discrimination really the only solution? And, given that it is generally derided (as it is in Lord Sumption's account), is offering it up as an option any solution at all?
3.2 Two alternative options First, as Lord Sumption acknowledges, there is a lack of diversity in the pool of available judicial candidates, due to deep-rooted historical and cultural reasons. It seems, ultimately, that this is the crux of the matter, and that we first need to address this problem, rather than pondering hypotheticals about positive discrimination. Arguably, to not encourage such participation is a breach of the JAC's duty to `encourage diversity in the range of persons available for selection for appointments'.46 That is not to say it is an easy problem to solve, and Lord Sumption notes that established social norms, such as child-rearing obligations, and the long hours required to reach the upper echelons of legal practice require to be dismantled before change can really be felt for women.47 Lord Neuberger hasmooted theoption ofintroducingmorepart-timejudicialappointments, even at Supreme Court level, in order to address this problem.48 Lord Sumption also notes that it takes time for groups—particularly ethnic minorities, `whose entry into the profession in large numbers is more recent'—to reach the top of their profession.49 But this argument does not explain the dearth of, for example, disabled or openly gay judges, or the fact that out of the twenty current and
42 Ibid, 22. 43 Ibid, 23. 44 Ibid, 24. See also Lord Neuberger's disapproval of positive discrimination for this reason in Bowcott, above n 38. 45 Sumption, ibid, 3. 46 2005 Act s 64. 47 Sumption, above n 22, 11. See also, for example, The Right Honourable Beverley McLachlin, `Why we need women judges' International Association of Women Judges Conference (2006) 8-9. McLachlin is the current Chief Justice of Canada and the first female in this role. Lord Sumption discusses Canada's experience of positive discrimination and the fact that three of the nine spaces on the Canadian Supreme Court bench are reserved for women (24-25). 48 Bowcott, above n 38. 49 Sumption, above n 22, 11. Judicial Diversity 13 former Supreme Court Justices, only two have not been educated at Oxbridge.50 Furthermore, although progress admittedly takes time, given past prejudices (and potential current subconscious prejudices mentioned above), it may not be enoughtoassumethatthisisthe only reason forlow participation and simplywait for the situation to rectify itself. The ultimate question is: why are certain groups under-represented in our judiciary? If something is precluding these classes from being in the pool of available candidates then we need to ask how we can remove these obstacles. If such obstacles are not removed, then we run the risk of still, in decades to come, being able to excuse our non-diverse judiciary on the basis that there were simply no minorities in the available pool of candidates. Secondly, Lord Sumption himself recognises the fact that `merit' is not defined in the 2005 Act.51 He goes on to say that `merit' cannot be defined as taking into consideration the possibility of a candidate `altering the make-up of the judiciary as a whole'.52 But it is arguable that it can be interpreted this way without ignoring the overriding concern of meritorious selection. It is already recognised that the Supreme Court needs a blend of knowledge from all jurisdictions of the United Kingdom,53 as well as requiring a mixture of criminal lawyers, family lawyers, land lawyers and so on. The bench could likewise benefit from a blend of gender, ethnicity, sexual orientation, religion, disability, social background, schooling and so on. Lord Sumption thinks there is a fundamental difference between what could be referred to as the `experience' and `background' categories. The former, he says are `relevant to a candidate's ability to do the job' whereas the latter are not.54 Do both categories, not, however, contribute to the same aim—a broad range of experiences and expertise; a diverse bench? It has been noted elsewhere that it is patronising and erroneous to suggest that all groups think alike or that there is, for example, one `single feminine worldview'.55 But, as Lady Hale has said:56
50 Lords Kerr and Hughes. The number of current and former Justices also includes Lord Hodge, who will become a Supreme Court Justice in October 2013. 51 Sumption, above n 22, 3. 52 Ibid, 4. 53 2005 Act s 27(8). 54 Sumption, above n 22, 4. 55 McLachlin, above n 47, 4, cited in ibid, 18. 56 Select Committee, above n 4, 265-266, and see her views in Radmacher v Granatino [2010] UKSC 42, especially paras 136-138. See also Lord Justice Etherton, `Liberty, the archetype and diversity: a philosophy of judging' [2010] PL 727. Lord Justice Etherton is the first openly gay Lord Justice of Appeal. Cf Sumption, above n 22, 19 who has the `strongest doubts' about the argument that a diverse bench has a wider range of experience that improves judgments. 14 Shona Wilson
Our experiences of life are quite simply different from those of our white male able-bodied colleagues. The important questions of law which affect us all should not be decided only by people whose experience of life is so very similar. A woman litigant should be able to go into the Court and see more than one person who shares at least some of her experience [...] This is in no way inconsistent with appointment on merit.
It has also been mooted, as Lord Sumption has recognised,57 that a homogeneous judiciary is seen as suspicious by the public.58 Surely this necessitates doing more than sitting around and waiting for change. Lord Sumption recognises that it `matters very much' that the public should feel content with the judiciary.59 He opines that the public's disdain for a non-diverse bench is caused by the `profoundly mistaken' belief that judges exhibit `tacit loyalty to their class, gender, race or other constituency'.60 The attributes of actual judgments aside, however, it surely cannot be acceptable if the public at large think that judicial selection is somehow morally dubious, nor if minorities feel excluded from participation in the higher reaches of their profession. It should never be the case that a candidate is selected `over the head of a competitor who would do the job better'61 because (s)he `ticks a box'. All other thingsbeingequal,however,diversitycouldcomeintoplay. LordSumptionnotes that this is permitted under the Equality Act 2010 section 159. This `tie-breaker' provision allows for the appointment of a candidate, historically disadvantaged or under-represented on the basis of one of the `protected characteristics',62 in preference to another equally qualified candidate where everything else is equal. Lord Sumption is pessimistic about the effect this clause can have, opining that genuine tie-breaks are fairly uncommon.63 Perhaps, however, with the encouragement noted above and a bigger pool to select from, tie-break situations could become more regular.
57 Sumption, above n 22, 16, 21. 58 See, for example, the written evidence of Lady Justice Arden: Select Committee, above n 4, 9; Etherton, above n 56, 744. 59 Sumption, above n 22, 21. 60 Ibid. 61 Ibid, 4. 62 Equality Act 2010 s 4. 63 Sumption, above n 22, 6. Judicial Diversity 15
4 Conclusion
Lord Sumption'sairingofthecontroversialtopicofjudicialdiversityismorethan welcome. He is right that we can no longer `tip-toe' around the issue.64 What is more worrying, however, is the pessimistic conclusion that diversity is still a long way off. If positive discrimination is to be rejected, then are we really left with the only other option of `waiting and seeing'? It is submitted that more could (and should) be done to speed up diversity.65 First, we need to consider why under-represented minorities (not just women and ethnic minorities, but also the other categories mentioned above) appear to be disenfranchised from the judicial recruitment process. More should be done to ensure that there is a bigger pool of more diverse applicants to choose from in the first place. This, admittedly difficult, aim would involve facilitating non-traditional applicants to both strive for the higher ranks of their career and to apply for judicial positions. Secondly, theideathatweshouldresorttopositivediscriminationshouldberejectedforthe reasons already outlined by Lord Sumption. Nothing should be done to dilute the calibre of our judiciary. It should, however, all other things being equal, be perfectly acceptable for someone's background to be taken into account as one factor in consideration of his or her appointment. Whilst not adopting positive discrimination, we must at least do more than sitting around and waiting. We must attempt to strive towards a more diverse judicial bench in our lifetimes.
64 Ibid, 16. 65 See E Rackley, `So, Lord Sumption says to be patient—we'll have a diverse bench … in 2062' The Guardian, 20 November 2012. DOI: 10.7574/cjicl.02.01.95 Cambridge Journal of International and Comparative Law (2)1: 16–32 (2013)
Intervention at the UK Supreme Court
Lorne Neudorf *
1 Introduction
This article examines the role of interveners before the UK Supreme Court. Interveners are persons who, while neither appellant nor respondent, participate in the litigation processand makesubmissionsto the courtin much the same way that either of those parties would. Interveners assist judicial decision-making by providing supplemental information that gives a broader economic and social context to the legal issues in dispute. Through a comparative study of the experienceofinterventionatthesupremecourtsoftheUnitedStatesandCanada, this article seeks to provide insights as to how the practice of intervention might developattheUKSupremeCourtintheyearstocome. Italsoidentifiesanumber of issues to lay a foundation for further scholarly study in the field. In the first section, intervention is placed in a comparative context by looking to the supreme courts of the United States and Canada. The second section provides an overview of the purpose and procedure of intervention at the UK Supreme Court. In the third section, a numerical analysis of intervention at the UK Supreme Court since it began hearing cases in 2009 (with reference to the House of Lords since 2005) identifies trends that may suggest future developments. The conclusion sets out that intervention before the UK Supreme Court offers a number of benefits if the process is carefully regulated.
* PhD Candidate, Faculty of Law, University of Cambridge; Barrister and Solicitor (Canada). The author thanks Geoffrey Hunnisett and especially Simon Lafferty for helpful comments and feedback but the standard disclaimer applies.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. Intervention at the UK Supreme Court 17
2 Intervention in comparative context: United States and Canada
Intervention is a standard feature of apex appellate courts in common law jurisdictions. In the United States, for example, a tremendous number of special interest groups participate in cases before the Supreme Court as amici curiae or `friends of the court'. This form of intervention in the United States presents an opportunityforinterestgroupstoadvancetheirpolicypreferencesbyinfluencing the judiciary at the highest level in key cases. The Rules of the Supreme Court of the United States set out that individuals or groups who bring relevant information to the attention of the judges, which might otherwise escape their attention, are of `considerable help' to the Supreme Court's decision-making process.1 Rule 37 establishes that amici may participate in proceedings by filing legal briefs (and occasionally making oral arguments) with the consent of the parties or, if consent is not forthcoming, by leave of the Supreme Court. In terms of their substantive content, legal briefs set out arguments to persuadethejudgestoreachtheoutcomedesiredbyeachgroup. Legalarguments are often supported by reference to scientific evidence derived from studies funded by the amicus curiae or citations to scholarly publications in a form resembling a `Brandeis brief', named after Louis Brandeis who, as a young lawyer, referred to social science evidence in arguing constitutional cases.2 It is clear that interest groups see value in intervening. An astonishing 597 legal briefs were filed by amici curiae in the 85 cases decided by the Supreme Court of the United States in 2012. According to my study of the docket database, amici participated in more than three-quarters of the total number of cases decided by the Supreme Court, with 65 percent of those cases involving a significant number of interventions.3 Interest groups included non-governmental organisations, corporations, academics, private citizens, and participants from all three branches of government. For example, in American
1 Rule37oftheRulesoftheSupremeCourtoftheUnitedStates,adopted12January2010,effective 16 February 2010,
Tradition Partnership, Inc v Bullock,4 acaseinwhichtheSupremeCourtconsidered the constitutionality of a state law restricting corporate donations to political candidates, legal briefs were filed by 17 different amici, including, among others, freedom of speech organisations, several US senators, a group of retired judges, a law school, two private citizens, and the State of New York. Perhaps unsurprisingly, the flurry of intervention activity at the Supreme Court of the United States has produced a cottage industry of specialist amicus curiae lawyers. The Washington DC office of one international law firm markets its intervention services by noting that amici curiae can play a pivotal role in Supreme Court decision-making, pointing to one tax case in which the judges `rejected the positions of both the Government and the taxpayer, and accepted the solution proffered by [our] amicus client'.5 WhiletheSupremeCourtofCanadahearsfrom considerablyfewerinterven- ers than its United States counterpart, intervention is still a well-utilised process in that appellate court. The Rules of the Supreme Court of Canada require any person interested in making submissions to apply for intervention status and set out why their submissions will be useful and different from those of the other parties.6 According to my analysis of Supreme Court judgments, 221 interveners participated in the 75 cases decided in 2012. Interveners participated in 60 per- cent of the total number of cases decided by the Supreme Court, with 40 percent of those cases involving a significant number of interventions.7 While the types of interest groups appearing before the Supreme Court of Canada are broadly similar to those appearing before the Supreme Court of the United States, there tend to be fewer interventions by organisations having express political leanings. Canadian interveners are often organisations claiming to represent a particular social collective, such as an occupational class. For example, in Alberta (Educa- tion) v Canadian Copyright Licensing Agency (Access Copyright),8 a case considering whether photocopying of copyrighted materials by a teacher fell within the `fair dealing'exemptionofthecopyrightstatute, 19intervenersparticipatedinthepro-
4 Supreme Court of the United States, Docket no 11-1179,
Table 1: Comparison of intervention activity at the Supreme Court of the United States and the Supreme Court of Canada over the 2012 calendar year.9
Supreme Court Supreme Court of the United of Canada States Total number of judgments decided 85 75 (A) Number of judgments involving 66 45 interveners (B) Percentage of total judgments 77.6% 60 % decided involving interveners (B/A) Number of judgments involving a 43 18 significant number of interveners (C) Percentage of total judgments 50.6% 24% involving a significant number of interveners (C/A) Percentage of judgments involving 65.2% 40% interveners having a significant number (C/B) Total number of interventions in all 597 221 judgments decided (D) Mean interventions per judgment 7.0 2.9 decided (D/A)
Scholarly study of intervention is well-developed in the legal and political science literature of both the United States and Canada. Caldeira and Wright argue that the diverse range of interest groups represented at the Supreme Court of the United States make the Court `very much a representative institution'.10 Others have found interveners to have a less favourable effect on courts, arguing thatintervenersdistortsocialscience evidence and generate questionable research specifically geared to their legal briefs. In one study, Rustad and Koenig
9 Decimal places have been truncated and not rounded in all calculations. 10 GACaldeira&JRWright,`Amici Curiae before the Supreme Court: who participates, when, and how much?', (1990) 52 J of Politics 782, 803. 20 Lorne Neudorf
Figure 1: Comparison ofintervention activity atthe Supreme Courtofthe United States and the Supreme Court of Canada over the 2012 calendar year.
observe that scientific evidence put before the Supreme Court of the United States through amicus curiae participation is not subject to the same procedural safeguards, such as cross-examination, as ordinary evidence introduced by the litigation parties.11 Collins has published extensively on special interest groups appearing before the Supreme Court of the United States. In his book, Friends of the Supreme Court: Interest Groups and Judicial Decision Making, Collins draws upon an extensive dataset of special interest participation in Supreme Court cases to evaluate the influence of amici curiae on judicial decision-making.12 Collins demonstrates that amicus legal briefs affect judicial policy choices by providing important contextual information, often in the form of scientific evidence, and arguments to supplement what is provided by the litigation parties. It is also interesting that
11 Rustad & Koenig, above n 2, 95. 12 P M Collins, Friends of the Court: Interest Groups and Judicial Decision Making (2008). See also P M Collins, `Friends of the court: examining the influence of amicus curiae participation in US Supreme Court litigation', (2004) 38 L & Society R 807. Intervention at the UK Supreme Court 21 intervention tends to increase the number of dissenting opinions as the appellate process becomes transformed into a public-policy battleground.13 Collins's conclusions are supported by other large-scale empirical studies, such as one conducted by Kearney and Merrill that documents an explosion in the number of amici curiae briefs filed at the Supreme Court over a half-century.14 In Friends of the Court: The Privileging of Interest Group Litigants in Canada, Brodie analyses various kinds of groups acting as interveners and their relation- ship with the Supreme Court of Canada.15 Brodie theorises that the Supreme Court supports its activist policy-making agenda through a mutually beneficial relationship with certain groups who intervene to provide a foundation for pre- existing judicial policy preferences. Alarie and Green's detailed statistical study shows that intervention at the Supreme Court of Canada matters: the presence of an intervener boosts the likelihood of outcome success in favour of the liberal or conservative orientation of the interest group and `all judges are susceptible to intervener influence in a statistically significant way'.16 Echoing the findings of Collins, Alarie and Green take the view that the Supreme Court encourages in- tervention when it seeks to better understand the context of its decision-making through additional information. The supplemental role of interveners and the increase in intervention activity over the past several years are positive develop- ments so far.17
3 Intervention at the UK Supreme Court: purpose and procedure
One of the principal reasons third parties are permitted to intervene in proceed- ings at the UK Supreme Court is that it is in the public interest for them to do so. This can be understood in at least two senses. First, it is in the public interest that the dispute at hand is resolved in a way that best serves the parties affected by the decision. Second, it is in the public interest that appellate courts make decisions based on the best available information. In this sense, the public is not just those
13 See P M Collins, `Amici curiae and dissensus on the US Supreme Court', (2008) 5 J of Empirical Legal Studies 143. 14 J M Kearney & T W Merrill, `The influence of amicus curiae briefs on the Supreme Court', (1999-2000) 148 U of Penn L R 743. 15 I Brodie, Friends of the Court: The Privileging of Interest Group Litigants in Canada (2002). 16 B R D Alarie & A J Green, `Interventions at the Supreme Court of Canada: accuracy, affiliation, and acceptance', (2010) 48 Osgoode Hall L J 381, 408. 17 Ibid, 410. 22 Lorne Neudorf who are immediately affected by a decision, but the citizenry as a whole given that the law decided by the upper courts binds the lower courts (and the popu- lace). The underpinning rationale is the ability of interveners to furnish the court with information that it might otherwise not have. Although a laudable principle, the public interest rationale is not without potential problems. In the modern era, judges may be connected to pressure and agenda-driven groups. There is a risk, even if minimal, that the impartiality of judges could be drawn into question as a result of these connections. Within the operation of the rule against bias, it must be considered whether a perception of bias could arise as it `is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done'.18 This is not a fanciful risk as Re Pinochet19 demonstrates. In that case, the House of Lords decided that its judgment had to be set aside because of Lord Hoffmann's links to Amnesty International, which had intervened. Moreover, judges might not only have direct links with interveners—that may or may not qualify as `bias'—they are likely to be exposed to a growing number of interveners in hearing their cases. Decisions in past cases may give rise to perceptions of a given disposition towards certain interveners or other pressure groups. Extra-judicial connections are important as well. Re Pinochet stands as a precedent for a formal extra-judicial connection: Lord Hoffmann was a director and chairperson of Amnesty International Charity Limited.20 However, adjudicators may meet members of pressure groups in many informal contexts (at dinner or receptions, for example).21 These cases are less than straightforward because the rule against bias might not apply in such a case. As a result, English substantive law on bias may have to develop in order to accommodate the issues emerging with increasing number of interveners at the UK Supreme Court. The procedure for intervening at the UK Supreme Court is governed by the Supreme Court Rules 2009. In particular, Rule 26(1) states that:
AfterpermissiontoappealhasbeengrantedbytheCourtoranotice of appeal has been filed, any person and in particular–
18 R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, 259. 19 [2000] 1 AC 119. 20 Although Amnesty International consists of numerous (technically distinct) legal entities, they were treated as one and the same legalperson for the purposesofthe appeal: ibid, 139 (Lord Goff of Chieveley). 21 A possibility touched upon by Deane J in the Australian case of Webb v The Queen, (1994)181 CLR 41, 74. Intervention at the UK Supreme Court 23
(a) any official body or non-governmental organization seeking to make submissions in the public interest, (b) any person with an interest in proceedings by way of judicial review, (c) any person who was an intervener in the Court below or whose submissions were taken into account under rule 15, may apply to the Court for permission to intervene in the appeal.22
The rule is drafted widely to include `any person', albeit with a special emphasis on those with an `interest in proceedings' in the judicial review context, or who seek to make submissions `in the public interest'. The Supreme Court is left with discretion under Rule 26(1) to self-regulate as to who may intervene. A recent decision of the UK Supreme Court, R (on the application of Prudential plc) v Special Commissioner of Income Tax,23 offers an interesting study of inter- vention. The case concerned the application and scope of legal advice privilege to advice given by accountants on a tax avoidance scheme. Five interveners par- ticipatedinthecase: TheLawSociety,TheBarCouncil,theInstituteofChartered Accountants, AIPPI UK Group, and the Legal Services Board. Prudential was un- usual because the majority and minority judges `agree[d] what the common law is or should be if the issue is treated as one of principle'.24 What they differed on was how that principle should be applied. The majority relied heavily on the arguments advanced by interveners, while the minority fashioned their dissent almost exclusively from first principles. While there were interveners on either side of the dispute in Prudential, those who supported the respondent did so on the ground that the `effect of extending [legal advice privilege] would involve a potentially nuanced policy decision [...] which is therefore best left to Parliament'.25 Yet it is clear that the minority had no such qualms about the UK Supreme Court extending legal advice privilege. Lord Sumption stated that `we are not here concerned with socialor economic issues orother issuesofmacro-policy which are classically the
22 Emphasis added. Rule 15 provides that parties (like those in Rule 26) may make written submissions to the Court in support of an application for permission to appeal. 23 [2013] UKSC 1. 24 Ibid, para 140 (Lord Clarke, diss). 25 Ibid, para 28 (Lord Neuberger). The same point is alluded to by Lord Reed in paragraph 101: `More fundamentally, it is necessary to give consideration to the respective roles, in relation to the development of this area of the law, of the courts, the executive and the legislature.' 24 Lorne Neudorf domain of Parliament'.26 The division between the majority and minority reveals a problem of characterisation: what is to be considered a social or economic issue or an issue of macro-policy best left to Parliament? A divisive intervener could leverage the potential in characterising an issue one way over another. This is particularly problematic where, due to time constraints or the availability of information, there is no counterargument to be heard (e.g., from another intervener).27 Moreover, in some cases, extensive social or economic evidence put before the court by an intervener may contribute to judicial comfort in deciding issues traditionally seen as the domain of Parliament. It remains to be seen how the UK Supreme Court will regulate the process of intervention. Judicial discretion in the broad wording of Rule 26(1) provides the SupremeCourtwithsufficientflexibilityindevelopingitsapproachtoensurethat it can obtain important and relevant information from interveners. The newly established Supreme Court has the opportunity to charter a course which can be informed by the experience of other jurisdictions: although each has its own intervention rules and different constitutional roles for its respective supreme court, the United States and Canada both offer lessons in how interveners can be fruitful contributors to judicial decision-making at the appellate level if the process is sufficiently regulated. Striking a balance between the benefits offered byintervenerswhileavoidingtheproblemstheypresentisnotaneasytask,which is why more work needs to be done to better explore intervention before the Supreme Court.
4 Intervention at the UK Supreme Court: the numbers
WhilethereismuchlessinterventionactivityattheUKSupremeCourtcompared to the supreme courts of the United States and Canada, the findings demonstrate that intervention has generally increased over the past eight years, with a signif- icant expansion following the creation of the Supreme Court as an institution distinct from the House of Lords.28
26 Ibid, para 131 (Lord Sumption, diss). 27 See the discussion by M Fordham, `Public interest interventions in the Supreme Court: ten virtues',
Table 2: Comparison of intervention activity at the UK Supreme Court from its establishment in 2009 through to the end of the 2012 calendar year.
2009 2010 2011 2012 UKSC UKSC UKSC UKSC Total number of judgments 17 58 60 63 decided (A) Number of judgments involving 6 17 24 23 interveners (B) Percentage of total judgments 35.2% 29.3% 40.0% 36.5% decided involving interveners (B/A) Number of judgments involving a 1 0 0 0 significant number of interveners (C) Percentage of total judgments 5.8% 0% 0% 0% involving a significant number of interveners (C/A) Percentage of judgments 16.6% 0% 0% 0% involving interveners having a significant number (C/B) Total number of interventions in 13 21 46 33 all judgments decided (D) Mean interventions per judgment 0.76 0.36 0.77 0.52 decided (D/A)
For example, at its peak in 2011, 40 percent of the Supreme Court's cases involved at least one intervener as compared to the House of Lords in 2005 where only 12 percent of its cases involved intervention. From its inception in 2009 to the end of 2012, the Supreme Court heard more than 35 percent of its cases in the
the judgments of the House of Lords appearing on its website
Figure 2: Comparison of intervention activity at the UK Supreme Court from its establishment in 2009 through to the end of the 2012 calendar year.
presenceofanintervenerincontrasttolessthan24percentattheHouseofLords in the period from 2005 to the cessation ofits judicialfunction in 2009: a relative increase of intervention in the total judicial case-load of nearly 50 percent. Despite the increasing incidence of intervention in cases before the UK Supreme Court, there remain few cases with a significant number of interveners. During the period studied, there was only a single case involving at least five interveners, being the 2009 judgment of the Supreme Court in R v Governing Body of JFS and the Admissions Appeal Panel of JFS and others.29 In that case, the Court was called upon to consider who is `Jewish' for the purpose of deciding whether an admissions policy at a Jewish secondary school infringed the Race Relations Act 1976. Interveners in the case included the Board of Deputies of British Jews, the Equality and Human Rights Commission, the Secretary of State for Children, Schools and Families, the United Synagogue, and the British Humanist Association. Lord Phillips' judgment referred to extensive
29 [2009] UKSC 15. Intervention at the UK Supreme Court 27 social science information presented to the Supreme Court, including statistics on denominations of persons identifying as Jewish and the accepted process of conversion in the context of a child who was refused admission to the school on the basis that he was not recognised as Jewish by the Orthodox denomination.30
Table3: ComparisonofinterventionactivityattheUKHouseofLordsfrom2005 through to the cessation of its judicial function in 2009.
2005 2006 2007 2008 2009 UKHL UKHL UKHL UKHL UKHL Total number of judgments 74 56 58 74 45 decided (A) Number of judgments 9 15 18 22 9 involving interveners (B) Percentage of total 12.1% 26.7% 31.0% 29.7% 20.0% judgments decided involving interveners (B/A) Number of judgments 0 0 0 0 0 involving a significant number of interveners (C) Percentage of total 0% 0% 0% 0% 0% judgments involving a significant number of interveners (C/A) Percentage of judgments 0% 0% 0% 0% 0% involving interveners having a significant number (C/B) Total number of 12 22 22 28 13 interventions in all judgments decided (D) Mean interventions per 0.16 0.39 0.38 0.38 0.29 judgment decided (D/A)
The lack of cases with a significant number of interveners stands in sharp contrast to the Supreme Courts of the United States and Canada, where key cases
30 Ibid, paras 3-6, 40. 28 Lorne Neudorf commonlyattractalargenumberofinterveners. However,theremaybeachange on the horizon as indicated by the Supreme Court's first delivered case in 2013 of Prudential, discussed above. Interestingly, there is also a correlation between the size of the panel hearing the case and the presence of interveners and their number. A larger panel size may be a way for the UK Supreme Court to send a signal, even if passively, to potential interveners of the importance of the case. When the Supreme Court sat with seven judges, for example, the likelihood of an intervention jumped by nearly five percent. The average number of interveners in cases with seven judges also increased. When nine judges sat on a case, the effect was even more significant: the likelihood of an intervention on a nine-judge panel jumped by nearly 50 percent, with an average of 1.53 interveners in such cases compared to an overall average of 0.57.
Figure 3: Comparison of intervention activity at the UK House of Lords from 2005 through to the cessation of its judicial function in 2009. Intervention at the UK Supreme Court 29
Table 4: Comparison of aggregate intervention activity at the UK House of Lords from 2005 through to the cessation of its judicial function in 2009 with the aggregate intervention activity at the UK Supreme Court from its establishment in 2009 through to the end of the 2012 calendar year.
2005-2009 2009-2012 UKHL UKSC Total number of judgments decided 307 198 (A) Number of judgments involving 73 70 interveners (B) Percentage of total judgments 23.7% 35.3% decided involving interveners (B/A) Number of judgments involving a 0 1 significant number of interveners (C) Percentage of total judgments 0% 0.5% involving a significant number of interveners (C/A) Percentage of judgments involving 0% 1.4% interveners having a significant number (C/B) Total number of interventions in all 97 113 judgments decided (D) Mean interventions per judgment 0.31 0.57 decided (D/A) 30 Lorne Neudorf
Figure 4: Comparison of aggregate intervention activity at the UK House of Lords from 2005 through to the cessation ofitsjudicialfunction in 2009 with the aggregate intervention activity at the UK Supreme Court from its establishment in 2009 through to the end of the 2012 calendar year. Intervention at the UK Supreme Court 31
Table 5: Comparison of intervention activity in seven- and nine-judge panels at the UK Supreme Court from 2009 through to the end of the 2012 calendar year with the overall numbers from the UK Supreme Court during the same period.
7 judge 9 judge All cases panels panels 2009-2012 2009-2012 2009-2012 UKSC UKSC UKSC Total number of judgments 37 13 198 decided (A) Number of judgments involving 15 11 70 interveners (B) Percentage of total judgments 40.5% 84.6% 35.3% decided involving interveners (B/A) Number of judgments involving a 0 1 1 significant number of interveners (C) Percentage of total judgments 0% 7.6% 0.5% involving a significant number of interveners (C/A) Percentage of judgments 0% 9.0% 1.4% involving interveners having a significant number (C/B) Total number of interventions in 32 20 113 all judgments decided (D) Mean interventions per judgment 0.86 1.53 0.57 decided (D/A)
5 Conclusion
As this study demonstrates, intervention at the UK Supreme Court is emerging as an important part of the litigation process. Where this may lead is not entirely clear. What can be drawn from the comparative and numerical analysis is that intervention has the capacity to enrich the judicial decision-making process. However, there remains a risk of transforming the highest judicial institution 32 Lorne Neudorf into a forum for specialised interests if this tool is not carefully utilised. An immoderate approach may encourage the Supreme Court to make decisions that are better made by more representative institutions and could threaten public perceptions of judicial impartiality. Further scholarly study of intervention at the UK Supreme Court, both qualitative and quantitative, is necessary to fully understand the process as it develops and more data becomes available. Who are interveners and what are their policy preferences? What kinds of cases tend to attract intervention? Why is there an overall trend toward increased intervention? What are the effects of intervention in influencing judicial choice? Is the evidence presented by interveners reliable or does it tend to distort the decision-making process? Is the litigation process, as traditionally understood, in a state of flux? These questions are all worthy of consideration. It is hoped that this study provides a useful starting point to answering these questions as well as stimulating further debate in this promising field as the Supreme Court matures.
Figure 5: Comparison of intervention activity in seven- and nine-judge panels at the UK Supreme Court from 2009 through to the end of the 2012 calendar year with the overall numbers from the UK Supreme Court during the same period. DOI: 10.7574/cjicl.02.01.85 Cambridge Journal of International and Comparative Law (2)1: 33–40 (2013)
Creativity in the Supreme Court 2011-12
Brice Dickson*
1 Introduction
Within the legal culture of the United Kingdom, despite its common law base, there is today limited room for judicial creativity, even in courts which deal only with appeals on points of law. This is partly because of the strict doctrine of precedent (the Supreme Court has vowed to follow the House of Lords' Practice Statement from 1966),1 but also because of the predictable mindset of our senior judges, who would not have reached the highest level of the judiciary if they were known to be non-conformist individuals who enjoy indulging in judicial flights of fancy. The legal changes which Supreme Court Justices advocate are always going to more evolutionary than revolutionary. The legal year 2011-12, which saw 58 sets of judgments issued by the Supreme Court, is a typical reflection of this reality. In most of the appeals, the Court's ruling took the form of the application of established principles to novel facts. Fewer than usual turned on the interpretation of legislation, but nor were there many instances of inventiveness in the application of the common law. Incrementalism was the order of the day. The Court was often required to clarify when a principle does not apply, a process which, in helping to shape existing law, still deserves to be classified as creativity of a sort.
2 Statutory interpretation
In the realm of statutory interpretation two decisions stand out. The first is Assange v Swedish Prosecution Authority,2 where the legal issue was whether the
* Professor of International and Comparative Law, School of Law, Queen's University Belfast. 1 Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28, para 25 (Lord Hope). 2 [2012] UKSC 22.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 34 Brice Dickson
SwedishprosecutorwhohadissuedanarrestwarrantinrespectofJulianAssange, the head of WikiLeaks, was a `judicial authority' for the purposes of the European Council Framework Decision on the European Arrest Warrant,3 and also of Part 1 of the UK's Extradition Act 2003. Holding that he was, the Supreme Court relied upon the Vienna Convention on the Law of Treaties to justify basing its conclusion on current state practice in the field. This was strange, not just because the Framework Decision is not itself a treaty, but also because ordinary common law principles of interpretation could have been used to arrive at the same result. Counsel for Assange later complained that the applicability of the Vienna Convention had not been fully discussed during the appeal hearing, but she was given short shrift by the Justices,4 even though two of them—Lady Hale and Lord Mance—had dissented from the original decision.5 There were three other sets of judgments on extradition matters in 2011-12. In HH v Deputy Prosecutor of the Italian Republic, Genoa6 and BH v Lord Advocate,7 the Supreme Court held that the extradition of persons to Italy and the USA respectively would not breach their children's rights to a family life under Article 8 of the European Convention on Human Rights (ECHR). But in Pomiechowski v District Court of Legnica 59-220 Poland,8 appeals against extradition were allowed on the basis that they would violate Article 6 of the ECHR. By way of contrast with Assange, the Vienna Convention was not invoked at all in SerVaas Incorporated v Rafidian Bank,9 where the claimant company failed to persuade the Supreme Court that funds payable by a bank in England to the government of Iraq were `in use for commercial purposes' as far as section 14(4) of the State Immunity Act 1978 was concerned, and so were not immune from execution by a creditor company such as itself. Giving the statutory phrase its `ordinary and natural meaning', and having regard to the context, the Justices unanimously held that whether the funds were in use for commercial purposes depended not on how they had first been acquired by the government, but on what use the government had since chosen to make of them. Here, the Iraqis had chosen to pay the money into the then UN-led Development Fund for Iraq, so it
3 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) OJ L 190. 4 Assange, above n 2. 5 Ibid, paras 191 (Lady Hale), 242 (Lord Mance). 6 [2012] UKSC 25. 7 [2012] UKSC 24. 8 [2012] UKSC 20. 9 [2012] UKSC 40. Creativity in the Supreme Court 2011-12 35 was beyond the reach of the creditor company. With respect, this seems to be a decision which significantly diminishes the rights of foreign creditors, in this case onewhich wasstillowed US$41million forequipmentithad supplied to theIraqi government. As Lord Clarke pointed out, it was a decision in line not just with the tenor of an earlier decision of the House of Lords,10 but also with decisions reached in similar cases in the USA and Hong Kong.11 But it still seems to run counter to business common sense.
3 Business common sense
Yet business sense was the basis upon which the Supreme Court appeared to decide several other cases during the year. In Rainy Sky SA v Kookmin Bank,12 it held that, when contracting parties have used ambiguous language, it is generally appropriate for judges to prefer the interpretation which is most consistent with business sense. Here, a construction of the contract in question, which excluded a shipbuilder's insolvency from the situations which triggered the respondent bank's obligation to refund advance payments made by buyers of the ship (amounting to nearly US$200 million), would have made no commercial sense at all. Similarly, in a rare leapfrog appeal from the Chancery Division, the Supreme Court relied implicitly on commercial expectations in Re Kaupthing Singer and Friedlander Ltd (No 2)13 when, disapproving of an earlier Court of Appeal decision,14 itchangedtheorderinwhichcreditorsofafailingbankshould be paid what was owed to them. The decision in the complex case of Re Lehman Bros International (Europe),15 in which the size of a statutory trust arising out of the administration of that failed company was at issue, also seems to have been motivated by commercial preferences, although the fact that a specialist commercial judge such as Lord Walker dissented (as well as Lord Hope) must surely give us pause for thought in that regard. Oracle America Inc (Formerly Sun Microsystems Inc) v M-Tech Data Limited,16 where a US company won the right to exercise its trade mark rights under Directive 89/104/EC, even though this meant partitioning the internal
10 Alcom Ltd v Republic of Colombia [1984] AC 580. 11 SerVaas, above n 9, paras 28-29 (Lord Clarke). 12 [2011] UKSC 50. 13 [2011] UKSC 48. 14 Re SSSL Realisations (2002) Ltd [2006] EWCA Civ 7. 15 [2012] UKSC 6. 16 [2012] UKSC 27. 36 Brice Dickson market of the European Economic Area, is a further example of commercial reality seriously influencing the end result. Their Lordships were so sure of their position that they refused to refer the issue to the Court of Justice of the European Union. In a patent case, Human Genome Sciences Inc v Eli Lilly & Co,17 the Supreme Court held that the lower UK courts had been too demanding when considering whether the patented protein in question was susceptible to industrial application: the case was remitted to the Court of Appeal with an instruction that the standards applied to this issue should be those preferred by theEuropeanPatentOffice. Asin SerVaas,notonlywascommercialsenseinissue here, but also international harmony. A purposive approach was certainly taken to the interpretation of employ- ment legislation, where again reasonable commercial expectations seem to have played a part. In Durham v BAI (Run Off) Ltd (In Scheme of arrangement),18 the Supreme Court held that, under the Employers' Liability (Compulsory Insurance) Act 1969, liability should be taken to arise when an injury or disease is caused, and that it therefore does not matter whether insurance policies refer to a dis- ease being `contracted' or `sustained'. Likewise, as regards the interpretation of employment contracts, there was a sensible ruling in Russell v Transocean Interna- tional Resources Ltd19 to the effect that workers on oil and gas rigs must take their four weeks' annual holiday leave at a time when they are not working off-shore. As they were working off-shore for only 13 fortnights in the year, this seems an entirely reasonable conclusion. So does the decision in Ravat v Halliburton Manu- facturing and Services Ltd,20 where the respondent repeatedly worked for 28 con- secutive days in Libya and then had 28 consecutive days off at home in England. The Supreme Court held that there was enough of a connection with England to give an employment tribunal there jurisdiction over an employment dispute.
4 Public law
In the field of public law, there were two contrasting decisions on when the Home Secretary should lay before Parliament documents affecting the position of would-be immigrants. In R (Alvi) v Secretary of State for the Home Department,21 the Supreme Court found that the Home Secretary should have made Parliament
17 [2011] UKSC 51. 18 [2012] UKSC 14. 19 [2011] UKSC 57. 20 [2012] UKSC 1. 21 [2012] UKSC 33. Creativity in the Supreme Court 2011-12 37 aware of a Code of Practice containing a list of occupations for which leave to remain in the United Kingdom might be granted. But in R (Munir) v Secretary of State for the Home Department,22 it found that there was no duty to lay a policy document setting out the concessions which, depending on all the circumstances of any particular case, could be granted to applicants who were asking for permission to remain in the United Kingdom. The Immigration Act 1971 requires the Home Secretary to lay before Parliament `statements of the rules […] laid down […] as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter'.23 For reasons that are not entirely convincing to this writer, the Code of Practice was apparently a `rule', whereas the policy document was not. In an important asylum decision, RT (Zimbabwe) v Secretary of State for the Home Department,24 their Lordships applied their previous decision concerning homosexuals in HJ (Iran) v Home Secretary,25 and ruled that people should not be denied asylum in the United Kingdom just because they could go backtotheirhomecountryandpretendnottohavethe political beliefs which they in fact have. This is very generous creativity and may, it is submitted, give rise to future difficulties. In W (Algeria)andBB(Algeria)vSecretaryofStatefortheHomeDepartment,26 the Supreme Court broke new ground by allowing judges for the first time to issue on an ex parte basis irrevocable non-disclosure orders, although it stressed that the power should be used `most sparingly'. In the case in question, it was used to assista person who was appealing against a deportation order on the basis thathe might suffer inhuman or degrading treatment if he was returned to Algeria. The order enabled the applicant to submit to the Court information from a source who would be at risk of physical reprisals if his identity was ever revealed. Perhaps the most significant decision of the year in terms of `constitutional' creativity was AXA General Insurance Ltd v Lord Advocate,27 where the Supreme Court established that, while Acts of the Scottish Parliament are technically secondary legislation, they are not challengeable in the same way as conventional secondary legislation. It is not sufficient to show that the Act is unreasonable, irrational or arbitrary. It can be invalid only if it breaches fundamental rights
22 [2012] UKSC 32. 23 Immigration Act 1971 s 3(2). 24 [2012] UKSC 38. 25 [2010] UKSC 31. 26 [2012] UKSC 8. 27 [2011] UKSC 46. 38 Brice Dickson or the rule of law. Lord Hope reaffirmed his view, previously expressed in R (Jackson) v Attorney General,28 that `the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based',29 and none of his sixcolleaguesin thecasedemurred. Hedid not, unfortunately, expand upon what he meant by `the rule of law'. Limited creativity was also on display in three important decisions relating to the Proceeds of Crime Act 2002. In Gale v Serious Organised Crime Agency,30 the appellants failed to persuade the Supreme Court that it was a breach of their Article 6 rights to be subjected to a recovery of property order on the basis of the civil rather the criminal standard of proof. In Re Peacock,31 the Court ruled (withtwodissents)thatapersonconvictedofdrugtraffickingbeforethe2002Act came into force could still have his after-acquired assets taken into account when an assessment was being made of how much property he would have to forfeit. And in Perry v Serious Organised Crime Agency,32 the Court held that the Act did not authorise the sending of information notices to persons outside the United Kingdom and that the jurisdiction of the High Court to make a civil recovery order extended only to property within England and Wales. Doubtless that last decision is one which will require the government to engage in creative thinking, since it has the potential to severely undermine the effectiveness of the Act.
5 Families, children and health care
In the fields of family law and child law, the Justices were more inventive. In Jones v Kernott33 theysetouttheapproachtobeadoptedwhencalculatingthebeneficial interests in property where legal title is held in joint names by an unmarried couple, but there is no express statement as to how the property is to be shared if the couple break up. Where it is not possible to infer an actual intention as to how to distribute the respective shares, judges can now impute an intention that each is entitled to the share which the court considers fair, having regard to the whole course of dealing between the couple in relation to the property. Somewhat surprisingly, in this case the Supreme Court saw nothing amiss with thecountycourtjudge'sdecisionthatthewomanwasentitledto90percentofthe
28 [2005] UKHL 56. 29 AXA, above n 27, para 51 (Lord Hope). 30 [2011] UKSC 49. 31 [2012] UKSC 5. 32 [2012] UKSC 35. 33 [2011] UKSC 53. Creativity in the Supreme Court 2011-12 39 property and the man to just 10 percent. In the Scottish appeal of Gow v Grant,34 the Supreme Court again approved of the sheriff's initial decision. Mrs Gow had sold her flat when she moved in with Mr Grant, a flat that was worth £38,000 more in 2009 than in 2003. Under section 28 of the Family Law (Scotland) Act 2006, the sheriff ordered Mr Grant to pay his former partner £39,500 when their relationship broke up after five years. Lady Hale was very impressed by this approach and called for a similar kind of remedy to be made available between cohabiting couples in England and Wales. The Supreme Court again effectively distributed resources in Re T (Chil- dren).35 In ruling that the grandparents who had intervened in these particular care proceedings should be awarded some of the costs they incurred when de- fending themselves against serious allegations, the Justices nevertheless stressed that the normal rule should be that local authorities are not liable for the costs of partiesagainstwhom allegationsofabusearemade. TheCourtfeltthatlocalgov- ernment money should not have to be spent in that way. Compare that approach with the result in R (KM) v Cambridgeshire County Council,36 where the Supreme Court rejected a challenge to the resources allocated to a severely disabled man since the County Council had acted entirely rationally in applying the resource allocation system it had developed. Here there was a distinct judicial reluctance to second-guess how best to spend local government money. Finally, as regards mental health care, there was a ground-breaking ruling concerning the scope of the right to life. This was in the tragic case of Rabone v Pennine Care NHS Trust,37 where a young woman had hanged herself while on temporary home leave from a stay in hospital. The Supreme Court ruled that the operational obligation under Article 2 of the ECHR was owed to a voluntary patient with mental illness, just as it had previously been found to extend to patients who are compulsorily detained.38 Each of the parents in this case was awarded compensation of £5,000. The new obligation imposed on health trusts has far-reaching implications.
34 [2012] UKSC 29. 35 [2012] UKSC 36. 36 [2012] UKSC 23. 37 [2012] UKSC 2. 38 Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74. 40 Brice Dickson
6 Conclusion
This brief survey of a year's decisions highlights how rare it is for the Supreme Court to have the opportunity to take the law down new channels. The decisions in Re Kaupthing, AXA and Jones v Kernott may look at first sight like significant developments, but in truth they are fairly predictable confirmations of earlier trends in case law. Perhaps only Rabone is indicative of a truly novel approach, one which imposes potentially far-reaching obligations on the state to ensure that all hospital patients are protected against loss of life, even at their own hands and while temporarily discharged. DOI: 10.7574/cjicl.02.01.87 Cambridge Journal of International and Comparative Law (2)1: 41–46 (2013)
The Structure of Supreme Court Judgments: Eleven Ways to Leave One’s Mark
Chris Hanretty*
In this short note, I should like to make four related points: first, that it is worthwhile considering the structure of Supreme Court (UKSC) judgments, and in particular the options which this structure affords individual Justices; second, that considering these affordances allows us to identify eleven distinct ways in which judges might contribute to a judgment of the UKSC; third, that these affordances have consequences for readers of judgments, in that they reduce complexity; and fourth, to suggest that future study of these affordances and of the ways in which judges contribute to UKSC judgments may offer us an insight into structures of decision-making in the UKSC. This last point is the most tentative, but it is ultimately most interesting for those who, like me, are interested in judicial behaviour. What is the structure of a UKSC judgment? A UKSC judgment consists of a title page, a page listing counsel, the body of the judgment and optional (but rare) appendices. The body of the judgment consists of sequentially numbered paragraphs grouped into opinions, which are marked off by bold headings listing the names of the judge or judges who wrote the opinion, optionally followed by the names of the judge or judges who indicated agreement with this opinion. Opinions may be structured by the use of unnumbered italicised headings and sub-headings, but the use of such structure is optional (in contrast to the practice of the Supreme Court of the United States),1 and there is no common vocabulary for these headings such that the reader might be able to easily identify the part of the judgment which deals with the facts, the part of the judgment which deals withthejudicialhistoryofthecase,andsoon(incontrasttothecommonpractice
* Lecturer in Politics, School of Political, Social and International Studies, University of East Anglia. 1 B R Delson, `Typography in the US reports and Supreme Court voting protocols' (2001) 76 NYULR 1203.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 42 Chris Hanretty of the Canadian Supreme Court).2 Judgments are weakly ordered in two senses. First, opinions which come earlier in the judgment are less likely to contain references to opinions which come later in the judgment. Second, opinions which dissent from the majority opinion are more likely to come at the end. However, there are exceptions to both of these general rules.3 Judgmentsaremoreordered(inthefirstofthesesenses)thanwerejudgments of the House of Lords, in part because of the possibility for judges to indicate agreement with another opinion in the heading of that opinion, rather than in the text of their own opinion. One frustrating aspect of House of Lords judgments was having to read through three or four paragraphs which recited, in near identicalfashion, `Ihavehad theadvantageofreading in drafttheopinion ofLord So-and-So. I would dismiss the appeal for the reasons he gives.' Such opinions are now nearly extinct.4 I am particularly interested in the possibilities for co-authorship and agree- ment made possible by the new standard structure of UKSC judgments. To bor- row a term from industrial design, we might talk about these possibilities as `af- fordances' of the current structure of UKSC judgments. Indicating agreement and co-authoring were implicit affordances of the structure of judgments in the HouseofLords. Thenew structuremakestheseaffordancesexplicit, inawaythat ultimately benefits the reader. It can be a relief (particularly in a long judgment) to see, in the bold heading which marks off the first opinion in a judgment, a list including all the remaining judges hearing the case. The reader is immediately made aware that s/he need only parse one chain of reasoning, long though it may be. Based on these affordances, I would like to suggest that there are now eleven logically possible ways in which judges might contribute to a judgment of the UKSC. These eleven ways result from three distinct and almost unrelated decisions: whether or not to dissent; whether or not to write, co-write, or refrain from writing an opinion; and whether or not to indicate agreement with another judge or judges' opinion(s).
2 P McCormick, `Structures of judgment: how the modern Supreme Court of Canada organizes its reasons' (2009) 32 Dalhousie LJ 35. 3 See, for example, R (Electoral Commission) v City of Westminster Magistrates Court and the United Kingdom Independence Party [2010] UKSC 40, paras 55-97 (Lords Rodger, Walker and Brown). 4 For one recent exception, see the joint one-sentence `opinion' of Lords Phillips and Clarke in R (on the application of Bibi and another) (FC) v Secretary of State for the Home Department [2011] UKSC 45, para 98, indicating their agreement with Lord Wilson and Lady Hale. The Structure of Supreme Court Judgments 43
In order to simplify matters, let us suppose that we are analysing a judgment handed down in a single case, and that the Court may make only one of two possible orders, allowing or dismissing the appeal. Judgments involving multiple cases complicate the issue of dissent; judgments where the Court may/must make more complicated orders (as is common in Attorney General's references or requests to refer issues to the Court of Justice of the European Union) make all matters more complicated. The first decision that a judge must make is whether he or she intends to agree with a majority of his/her colleagues concerning the disposition of the case, or whether s/he intends to disagree. This decision might require a prior decision by the judge over the correct disposition of the case, followed by a moment of revelation when the judge finds out whether s/he is in the majority or the minority. Or the relationship between the judge's belief as to the correct disposition and the revelation of colleagues' opinions might be more subtle, involving either a reconsideration of the judge's initial decision, or a suppression of the judge's opinion in the interests of comity. The second decision a judge must make is whether he or she intends to author a decision, to co-author a decision, or to refrain from writing a decision. Obviously, the decision to co-author is not one which can be taken individually, but it is the product of two or more judges' decisions. At the limit, the decision to co-author may involve all the members of the Court. I assume that opinions whichareexplicitlydescribedasjudgmentsoftheCourtcanbeanalysedasifthey were co-authored by all judges, even if they appear under a single judge's name. The third and final decision a judge must make is whether he or she intends to indicate express agreement with another opinion or opinions. It is at this point that some choices become related. Judges who have chosen to dissent from the majority opinion and who have refrained from authoring an opinion must indicate express agreement with another opinion. That is, there is no such thing as silent dissent. 44 Chris Hanretty
Figure 1: Judges' decision tree.
If the relevant decisions are as I have described them, then there are (2 * 3 * 2) – 1 = 11 different ways in which judges may decide to contribute to a judgment. In the figure, I show the decision tree for judges, and the numbers of times that judges have chosen to contribute in each way, based on data up to and including Trinity Term 2012. Not allof the possible ways in which judges may contribute to a judgment have been used. There have been, as yet, no co-authored dissents; nor have there been any authors of dissenting opinions who have also indicated their agreement with another, separate, dissenting opinion. Finally, there have not yet been co-authors who have also indicated their agreement with other separate concurring opinions. Some particular ways in which judges might contribute are worth comment- ing on:
1. Authors who agree: in a number of cases, judges have chosen to indicate their agreement with another judge whilst at the same time writing an The Structure of Supreme Court Judgments 45
opinion of their own. Such opinions are often self-consciously described as footnotes to an opinion which commands widespread agreement of the Court.5 Judges may use such `additional' opinions to indicate how the approach taken in the lead opinion might apply in their jurisdiction.
2. Double-refrainers: in three cases which were not explicitly described as judgments of the Court,6 some judges neither indicated express agreement nor authored an opinion.
3. Shy dissenters: two judges—Lady Hale and Lord Rodger—have availed themselves of the opportunity of agreeing with a dissenting opinion.7
Beyond the mere typology I have indicated here, the affordances of the structure of UKSC judgments make other exciting analyses possible. For instance, co-authorship and express agreement may be expressed as undirected and directed links between judges, respectively. We can therefore use the many tools of social network analysis to better understand the interaction of judges in the Court. In particular, I would like to suggest a number of areas of research:
1. Community detection: are there particular groups of judges such that in-group judges are more likely to co-author or agree with one another than they are with out-group judges?
2. Analysis of directed ties: are there particular judges who are very commonly agreed with? Or, in the language of social network analysis, are there judges who have very high in-degree centrality—and if there are, are these necessarily the most senior judges?
5 See, for example, Lord Hope's `footnotes' in R (A) v B [2009] UKSC 12, paras 39-50. 6 Parkwood Leisure Limited v Alemo-Herron and others [2011] UKSC 26 (Lords Walker, Brown, Kerr and Dyson); Principal Reporter v K and others [2010] UKSC 56 (Lords Rodger and Kerr, and Sir John Dyson SCJ); Anderson v Shetland Islands Council and another [2012] UKSC 7 (Lords Kerr and Reed). 7 Shepherd Masimba Kambadzi (previously referred to as SK (Zimbabwe)) (FC) v Secretary of State for the Home Department [2011] UKSC 23 (Lord Rodger agreeing with Lord Brown, diss); R (on the application of Adams) (FC) v Secretary of State for Justice [2011] UKSC 18 (Lord Rodger agreeing with Lord Brown, diss); Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 v Secretary of State for the Home Department [2011] UKSC 12 (Lord Rodger agreeing with Lord Brown, diss); Al Rawi and others v The Security Service and others [2011] UKSC 34 (Lady Hale agreeing with Lord Mance, diss); In the matter of Peacock [2012] UKSC 5 (Lady Hale agreeing with Lord Hope, diss). 46 Chris Hanretty
3. Analysis of influence: are there particular judges who might be described as `influential', either in that they are commonly agreed with, or commonly agree with, or in that they can act as bridges between other judges, either in respect of co-authorship or agreement? DOI: 10.7574/cjicl.02.01.86 Cambridge Journal of International and Comparative Law (2)1: 47–59 (2013)
The Selection of the Major Premise
William Gummow*
1 Introduction
It is notorious that in a common law system of adjudication, there are no categorical rules for the selection, at the appropriate level of generality, of the major premise from which there will proceed the chain of reasoning to the result. This is a significant matter, given that the result will differ if one major premise is selected rather than another. The point may be illustrated by looking back to the choice of the major premise by Dixon CJ and Williams J in their joint reasons in the Australian case of Thompson v Bankstown Corporation.1 In that case, a thirteen year old boy had sought to reach a bird's nest in a ledge in a decayed portion of a pole, erected by the respondent local government authority on a public road to carry high tension electricity wires. The boy received a severe electric shock. The Australian High Court restored a verdict in his favour which the intermediate court had set aside. The opening passage in the joint reasons reads:
The difficulty in deciding this appeal arises from the possibility and perhaps the necessity of choosing between two competing categoriesofthelawoftortsandapplyingoneofthemtothefactsto the exclusion of the other. One category concerns the duties of an occupier of a structure with respect to the safety of those who come upon it or within the area of the control exercised or exerciseable by the occupier. The other category forms part of the general law of negligence and relates to the duty of exercising a high standard of
* Professor of Law at the University of Sydney and at the Australian National University, formerly Justice of the High Court of Australia. 1 (1953) 87 CLR 619. See further, Sydney Water Corporation v Turano (2009) 239 CLR 51, 69-70; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, 406-410.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 48 William Gummow
care falling upon those controlling an extremely dangerous agency, such as electricity of a lethal voltage.2
The New South Wales Full Court had decided that the plaintiff had no right to recover because the case was governed by the law respecting occupiers and trespassers; but the High Court held that as controller of a dangerous agency, the defendant owed a very high duty of care. Dixon CJ and Williams J considered it to be `an artificialand unrealview ofthe situation'to fix upon the character ofthe pole as the `premises' or `structure' of which the defendant was in `occupation'.3 The drawing of distinctions to found particular categories in the law of negligence, at least where negligent misstatement is not involved, has fallen into disfavour since Thompson was decided. But that decision still presents what will be a theme of this paper. This is, the fixing in a particular case of the level of abstraction at which there is placed the field of debate and decision. Thompson suggeststhattheselectionofadifferentpremisebycourtsinseveral jurisdictions which are presented with similar disputes may lead to different results. This paper will seek to illustrate the point by reference to four sets of recent decisions in the Supreme Court of the United Kingdom and the High Court of Australia. These decisions deal with tort actions by mesothelioma sufferers; theactofstatedoctrineandthe Mocambique ruleinprivateinternational law; the `anti-deprivation principle' in insolvency statute law; and the remedial scope of principles associated with `the rule of law' and `legality'.
2 The mesothelioma cases
Itwouldbeamistaketotreatthesubjectmatterforclassificationandadjudication necessarily as limited to an issue joined on the pleadings, or, as in Thompson, a particular category of substantive law. What is expressed as a principle of law may be pitched at a false level of permanence and generality, by abstraction from whatintruthisashiftingbodyofexpertopinion. Thiswillbeparticularlysowith scientific evidence. Theroleofscientificknowledgeandopinionintheprocessesforadjudication and the formulation of principles of law is not always appreciated. Two points should be made here. The first is that a shift in scientific knowledge and opinion may take place after the formulation of a legal principle designed to respond to
2 (1953) 87 CLR 619, 623. 3 Ibid, 628-629. The Selection of the Major Premise 49 an earlier state of knowledge and opinion. What then is the scope for application to that legal principle of the maxim cessante ratione legis, cessat ipsa lex? The evidentiary foundation for the formulation of a principle of law having been removed, is the legal principle more than a legal fiction?4 The second point concerns the significance of the burden of proof and is captured by the statement of Sir Owen Dixon in Adelaide Stevedoring Co Ltd v Forst:
I think that upon a question of fact of a medical or scientific description a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis.5
Issues of this nature are presented by the treatment in the United Kingdom courts of cases of mesothelioma engendered by exposure to asbestos. The `special rule' formulated by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd6 responded to what at trial had been an imperfect state of knowledge of the parthenogenesis of the disease. In particular, in that litigation it was common groundthatitcouldnotbesaidwhetherasinglefibreofasbestoswasmoreorless likelytohavecausedthedisease,oralternativelywhethermorethanonefibrewas more or less likely to have caused the disease.7 The `special rule', since qualified by the Compensation Act 2006, attributed a sufficient causal connection where otherwise this would not be present. As Lord Nicholls put it:
So long as it was not insignificant, each employer's wrongful exposure of its employee to asbestos dust, and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection. This is sufficient to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of the mesothelioma when, in
4 See the remarks of Dawson J in R v L (1991) 174 CLR 379, 405; and generally PGA v The Queen (2012) 287 ALR 599, 607-608. 5 (1940) 64 CLR 538, 569. 6 [2002] UKHL 22. 7 [2001] EWCA Civ 1881, para 26. 50 William Gummow
thepresentstateofmedicalknowledge,nomoreexactcausalconnection is ever capable of being established. Given the present state of medical science, this outcome may cast responsibility on a defendant whose exposure of a claimant to the risk of contracting the disease had in fact no causative effect. But the unattractiveness of casting the net of responsibility as widely as this is far outweighed by the unattractiveness of the alternative outcome.8
Litigation which went to trial in 2008 and 2009, and which reached the Supreme Court in SienkiewiczvGreif(UK)Ltd,9 wasconductedonthebasisthat,inwhatstill was the present state of medical knowledge, a mesothelioma victim was unable to prove on the balance of probabilities the source of exposure to asbestos which had initiated the process culminating in the disease. More recently, the Supreme Court has considered claims to pass the burden of this special liability on to insurers. In BAI (Run Off) Limited v Durham,10 the question was whether the injury or disease was `sustained' or `contracted' during the period of the policies. Again, the litigation was conducted on the evidentiary basis that `it is impossible to know whether any particular inhalation of asbestos (at least any occurring more than ten or so years prior to diagnosability) played any or no part in [...] development [of the disease]'.11 Lord Mance said that `[b]ecause of this unusual feature, the law has developed a special rule'.12 However, expert evidence given in 2010 in New South Wales, where the authority of Fairchild had been unsettled, showed that the `one fibre' theory had been emphatically discredited. In Amaca Pty Ltd v Booth,13 the case for the plaintiff, which was accepted by the Australian High Court, was developed in the following steps:
(1) he had contracted mesothelioma; (2) the only known cause of that disease is exposure to asbestos; (3) the expert evidence at trial, accepted by the primary judge, was that: (a) exposure to asbestos contributes to the disease; and (b) the prospective risk of contracting the disease increases with the period of significant
8 [2002] UKHL 22, para 42 (emphasis added). 9 [2011] UKSC 10. 10 [2012] UKSC 14. 11 Ibid, para 5. 12 Ibid. 13 (2012) 283 ALR 461. The Selection of the Major Premise 51
exposure; (4) [the plaintiff] had two periods of significant exposure; (5) it is more probable than not that each period of exposure made a material contribution to bodily processes which progressed to the development of the disease.14
The upshot was that in Amaca, the High Court was able to deal with successive exposures to asbestos as to uphold the judgment in favour of the plaintiff by orthodox legal reasoning and without disturbance to the coherence of the causation doctrine. It remains to be seen what will be the sequel to the development in scientific knowledge for the common law as understood in these jurisdictions following Fairchild or some fictional theory of causation.
3 Foreign intellectual property
Municipallegalsystems adopt various structures under which different species of intellectual property are created and protected by statute. Generally speaking, at one end of the spectrum are patents and registered trade marks, which require a grant of registration by a governmental authority and are subject to revocation or expungement from the register, and at the other are copyrights in original works, which vest in authors without the intervention of a registration system. What all these species of intellectual property have in common is that the rights which statute attaches to them are territorial in scope. The territorial principle, with respect to patents, was explained as follows by Fullagar J in the Australian case of Norbert Steinhardt and Son Ltd v Meth:
A patent for an invention gives a monopoly within the territory of the country which grants it. Outside that territory it has no force or effect. TheEnglish PatentsActrelatesexclusively to English patents, and the infringements which it makes unlawful are infringements of English patents only. In the same way, the Australian Patents Act relates exclusively to Australian patents, and the infringements which it makes unlawful are infringements of Australian patents only. If, therefore, an Australian patentee sues in Australia for an infringement alleged to have been committed in England, and it is asked whether the act complained of was actionable in England,
14 Ibid, 484. 52 William Gummow
the answer must be: No. For his Australian patent gives him no monopoly in England, and what the defendant has done in England is perfectly lawful according to English law.15
But the concluding phrase `perfectly lawful according to English law' does not allow for the operation of the rules of private international law. What, for example, is the position of a defendant with a presence in the forum (and elsewhere) who is sued in the forum for infringement in another country of copyright subsisting under the laws of that country? That was an issue, resolved in favour of the plaintiffs, by the Supreme Court in Lucasfilm Ltd v Ainsworth.16 The Supreme Court identified several competing propositions which might supply the major premise in the dispute. One was the Mocambique rule.17 The question was whether an action in the forum for infringement of a foreign intellectual property right was analogous to an action for damages for trespass to foreign land. If so, the infringement action in the forum would not lie. But in the United Kingdom, statute had intervened. Section 30(1) of the Civil Jurisdiction and Judgments Act 1982 affirmed the jurisdiction of the courts to entertain tort actionsaffectingforeignimmovableproperty, suchastrespassactions, savewhere `the proceedings are principally concerned with a question of title to, or the right to possession of, that property'. In Australia, however, the position would not be so simple. In Regie Nationale des Usines Renault SA v Zhang,18 the High Court reserved the Mocambique ruleforconsiderationinanappropriatecase. Moreover, in New South Wales the rule, in all its forms, was abolished by the Jurisdiction of Courts (Foreign Land) Act 1989 (NSW). Another major premise might be supplied by classifying actions for infringe- mentasactionsintortandthenapplyingtherulein PhillipsvEyre.19 Theruleinits pristine form requiring `double actionability' would deny the justiciability in the forum of a claim for infringement of foreign intellectual property.20 However, in the UK, the rule was abolished by the Private International Law (Miscellaneous Provisions)Act1995andunderPartIIIofthatstatuteitappearsthatthegoverning law in a UK court would be that of the place of infringement. In Australia, the re- sultofthe rejection ofthe double actionability rule by the decision in Zhang21 also
15 (1961) 105 CLR 440, 443-444; reversed on other grounds (1962) 107 CLR 187. 16 [2011] UKSC 39. 17 After British South Africa Co v Companhia de Mocambique [1893] AC 602. 18 (2002) 210 CLR 491, 520. 19 (1870)LR 6 QB 1. 20 Above n 16, paras 60-63. 21 (2002) 210 CLR 491. The Selection of the Major Premise 53 would be that the lex loci delicti would supply the substantive law for the deter- mination of rights and liabilities in respect of infringement of foreign intellectual property rights. Another competing major premise identified by the Supreme Court in Lucasfilm was the `act of state' doctrine. This is associated with the broadly expressed statement by Fuller CJ in the US Supreme Court case of Underhill v Hernandez22 that `the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory'. In Vanity Fair Mills Inc v T Eaton Co Ltd,23 the doctrine was used to deny in a United States federal court the justiciability of foreign trade mark and patent rights. In Lucasfilm, the Supreme Court did not deny that such a doctrine existed as a part of English law, but limited its scope. Lords Walker and Collins said that in England the doctrine:
has not been applied to any acts other than foreign legislation or governmental acts of officials such as requisition, and it should not today be regarded as an impediment to an action for infringement of foreign intellectual property rights, even if validity of a grant is in issue, simply because the action calls into question the decision of a foreign official.24
Shortly thereafter, in MotivTheQueen,25 the Australian High Court, with detailed reference to the writings of Dr F A Mann, went somewhat further. The High Court was concerned not with intellectual property, but with the circumstances in which the appellant had been removed or expelled from a foreign country and then put on trial in Australia. The High Court held that the fact that the decision of a foreign official was called into question did not of itself prevent an Australian court from considering the circumstances which the appellant said rendered his prosecution an abuse of the process of that court. But their Honours developed their reasoning as follows:
But both the dictum [of Fuller CJ], and the phrase `act of State', must not be permitted to distract attention from the need to identify the issues that arise in each case at a more particular level than is achieved by applying a single, all-embracing formula. Thus, as has
22 168 US 250, 252 (1897). 23 234 F.2d 633, 646 (1956). 24 Above n 16, para 86 (emphasis added). 25 (2011) 283 ALR 393, 406-407. 54 William Gummow
now been pointed out in successive editions of Dicey and Morris, the result to which the dictum of Fuller CJ would point is often a result dictated by the application of ordinary rules governing the choice of law. So, for example, there could be no recovery by an action brought in this country in tort for the governmental seizure of property in a foreign country if the law of the place where the alleged tort was committed permitted that seizure. Whether the acts of which complaint was made in such a case were tortious would be determined by reference to the law of the place where the alleged tort was committed. And other circumstances in which the dictum might be thought to be engaged will more appropriately require the application of well-established rules about foreign states immunity.26
The upshot is that had the facts the subject of Lucasfilm occurred in Australia, the competenceoftheAustraliancourtinaninfringementactionwoulddependupon whether the Mocambique rulesuppliedthemajorpremise,and,ifso,thecontinued status in Australia of that rule. If Mocambique were rejected, then the categories of reference for the selection of the major premise would, but for somewhat different reasons, produce the same result in both England and Australia, where the issue was one of infringement. However, if invalidity of a patent or registered trade mark was put in issue then, it would appear that as a matter of comity, no order for revocation or expungementwouldbedirectedbytheforum totheauthoritiesinthejurisdiction of grant of the patent or registration of the trade mark. Accordingly, the forum could not by its orders effectively dispose of the whole of the controversy in such a case. Would thisfound an application fora stay ofthe action in the forum? This question is not answered by the Lucasfilm copyright litigation.
4 Statute and insolvency
The result of a particular interplay between the common law and statute may determine the major premise for legal reasoning. Recent insolvency litigation provides an example.
26 Ibid, 407-408. The Selection of the Major Premise 55
In International Air Transport Association v Ansett Australia Holdings Limited,27 the Australian High Court considered the clearing house arrangements for set-off conducted by International Air Transport Association (IATA), in circumstances where the defendant airline had entered into a deed of company arrangement. The High Court rejected the existence of what the defendant said was an overarching rule of public policy, not found in legislation, that required `equal treatmentofcreditorsinthesameclass'. This`rule'wouldhavedeniedtheefficacy of the IATA set-off provisions. This asserted rule of public policy has since been identified as `the anti- deprivation rule'. In the English case of Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd,28 Lord Neuberger MR favoured the view that any such rule was based on the proposition that one cannot contract out of insolvency legisla- tion and he repeated what had been said in Ansett:
Many [of the cases in which the rule is said to have been recognised and applied] can be understood as depending upon the proper application of a generally expressed provision in the relevant statute requiring that all debts proved in an insolvency rank equally and, if thepropertyoftheinsolventisinsufficienttomeetthem in full, they are to be paid proportionately [...] Others [...] turned upon what was the`property'ofthecompanythatwastobeappliedinsatisfactionof its liabilities [...] Instead, it is essential to begin from the elementary proposition that insolvency law is statutory and primacy must be given to the relevant statutory text.29
However, on appeal to the Supreme Court, reported as Belmont Park Investments Ptd Ltd v BNY Corporate Trustee Services Ltd,30 it was held that there was `a rule of public policy' directed against attempts to reduce the value of an insolvent estate to the detriment of creditors where the attempt, as a matter of substance, did not have `a legitimate commercial basis'. Ansett was distinguished on the footing:
that there was no need for recourse to the rule that a contract which is contrary to public policy is void, because the statute was an overriding one which applied according to its terms [...] There
27 (2008) 234 CLR 151. 28 [2009] EWCA Civ 1160. 29 Ibid, para 78. 30 [2011] UKSC 38. 56 William Gummow
is much to be said for the observation that recourse to public policy is unnecessary for the application of the mandatory statutory pari passu principle. There is little difference in practice between declaring a contractual provision invalid or ineffective because it is inconsistent with the statute and declaring it contrary to public policy for the same reason.31
But, their Lordships held, the anti-deprivation rule with which they were concerned was aimed not at preserving pari passu distribution, the issue in Ansett, but at reductions from the pool of available assets in the insolvency administration. However, the result reached by the Supreme Court in Belmont was the same asin the CourtofAppeal. The rule ofpublic policy as formulated by the Supreme Court did not invalidate the `swap counter party priority' which was retained in the insolvency administration of Lehman Brothers Special Financing Inc. Lord Collins wrote that:
The anti-deprivation rule and the rule that it is contrary to public policy to contract out of pari passu distribution are two sub-rules of the general principle that parties cannot contract out of the insolvency legislation [...] The anti-deprivation rule is aimed at attempts to withdraw an asset on bankruptcy or liquidation or administration, thereby reducing the value of the insolvent estate to the detriment of creditors. The pari passu rule reflects the principle that statutory provisions for pro rata distribution may not be excluded by a contract which gives one creditor more than its proper share.32
But each sub-rule strikes at the efficacy of contractual arrangements and does so on the footing that statute itself does not have that effect upon those arrangements. Thus the choice of a common law rule rather than a statutory prescriptiontosupplythemajorpremisedeterminesthefieldofdisputeinagiven case. Butwhatismeantby`publicpolicy'inthiscontext? Insolvencyisthecreation of statute law. Equity may engage in various ways with the conduct of insolvent administrations, but this is not the attributed source of the `public policy'. Long
31 Ibid, para 13. 32 Ibid, para 1. The Selection of the Major Premise 57 ago, Cresswell J, after indicating his preference for the term `policy of the law' to `public policy', went on:
So, in bankruptcy, the object and policy of the bankrupt-laws is to make a rateable distribution of the bankrupt's property amongst all his creditors, and preferences given to particular creditors by a trader in contemplation of bankruptcy are in violation of the policy of the bankrupt-laws, and are therefore held to be fraudulent and void.33
To some minds, this will suggest that what is at the root of any anti-deprivation rule or principle against `contracting out' of the insolvency legislation is the conclusion that the scope and purpose of the statute law will not be fulfilled without treating as ineffective the contractual arrangements in question.34 The distinction perceived in Belmont between the anti-deprivation rule and the pari passu principle then becomes somewhat illusory.
5 The rule of law
This expression is sometimes taken not to encompass the operation of the wholestructureofconstitutionalgovernment, butto over-emphasisetheposition within that structure of the judicial branch, particularly in the review by the courts of administrative decision-making. The distinction between errors within and beyond jurisdiction is difficult of application in some cases, and is in deep disfavour in academic circles and in the current English case law. But at least it has the advantage of indicating that there may be some errors in administration which do not attract intervention by the judicial branch. A denial of procedural fairness, where the nature of the decision in question attaches that requirement, is a recognised head of reviewable error. But what of the denial of a `legitimate expectation'?
33 Egerton v Earl Brownlow (1853) 10 ER 359, 394-395. 34 A species of illegality explained and applied in Miller v Miller (2011) 242 CLR 446, 457-458; Equuscorp Pty Ltd v Haxton (2012) 286 ALR 12, 21-22, 41-42. 58 William Gummow
In Canada35 and Australia36 it is settled at the highest level, that the phrase `legitimateexpectation'isbutanaspectoftheprinciplesofproceduralfairness. As such, it cannot supply the major premise for the construction of a case for judicial review. But, in England, the course of judicial decision has taken a markedly different course. First,itwasdecidedthattheremightbealegitimateexpectationofsubstantial benefitso thatitwasan `abuseofpower'forthedecision-makerto takeanew and different course.37 Then, as explained by Laws LJ in R (Nadarajah) v Secretary of State for the Home Department,38 the position was reached that (i) unless there is `good reason' for not doing so, `the law' will require a public authority to honour `a promise' or `a practice' which represents how it proposes to act in a given area, and (ii) while this legal requirement in general terms is grounded in `fairness', it is best seen as `a requirement of good administration'. Most recently, in R (WL (Congo)) v Home Secretary,39 the Supreme Court, by majority, appears to have gone much further. The decision may support the propositions that: (a) even where a decision is intra vires of the relevant statutory power, the failure of that decision to make good the expectation of a favourable exercise of the power is to be treated as an unlawful act; and (b) this subjects the decision-maker not merely to judicial review, but to liabilities in private law, for example, for the tort of false imprisonment. By these steps from an imprecisely expressed major premise respecting the normative content of `the rule of law',40 a result is reached which, to some eyes, crosses an important line of division between the judicial and executive branches of government. That line marks off judicial review for jurisdictional error or error of law from review on the merits of administrative decisions.41
35 Mount Sinai Hospital Center v Quebec [2001] 2 SCR 281, 302-303; Canada (AG) v Mavi [2011] 2 SCR 504, 534. 36 Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Lam (2003) 214 CLR 1. 37 R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213, 243. 38 [2005] EWCA Civ 1363, paras 68-69. 39 [2011] UKSC 12. 40 See ibid, paras 219-221. 41 M Aronson, B D Dyer & M Groves, Judicial Review of Administrative Action (4th edn, 2009) paras 6.280-6.295. The Selection of the Major Premise 59
6 Conclusion
Questions of characterisation of the issues presented for adjudication are an- swered only partly by scrutiny of the issues joined on the pleadings or other pro- cesses of thatnature. There remains leeway for judicialselection ofthe field upon which those issues will be determined. DOI: 10.7574/cjicl.02.01.88 Cambridge Journal of International and Comparative Law (2)1: 60–66 (2013)
‘A Most Difficult Case’: On the Ratio of Gnango
Findlay Stark*
J C Smith once asked whether English law could `really afford the House of Lords as an appellate court' in criminal matters.1 Beyond the allegedly shaky reasoning which so irked Smith and others (such as Glanville Williams),2 it was common to find the Law Lords split 3:2 on important issues such as the definition of central criminal law concepts like recklessness,3 or the limits of consent in the law of non-fatal, non-sexual offences against the person.4 Within these slim majority decisions, it was often possible to detect plain disagreement, or at least distinct lines of argument. The result of this was that the ratio decidendi of many House of Lords decisions in criminal matters was difficult to state with precision. Less charitably, it has been alleged that the law was often left `far more uncertain than it was before the appeal' to the Lords.5 There would often need to be further decisions, typically by the Criminal Division of the Court of Appeal (CA), before the full impact of a House of Lords decision became clear. This might be contrasted with decisions of the CA. There, a real effort is made to present one judgment, which represents the considered view of the judges who heard the case.6 This approach is not perfect (for the simple reason that the CA is so overworked that two differently-constituted benches might conceivably hear two cases on the same issue at the same time and reach two mutually contradictory decisions), but it does at least reduce the margin for error when working out why a particular decision was reached. It is thus easier—for
* Yates Glazebrook Fellow in Law, Jesus College, University of Cambridge. I am grateful to Nicola Padfield and Shona Wilson for their helpful comments on earlier drafts. 1 J C Smith, `Commentary: R v Caldwell' [1981] Crim LR 392, 393. 2 See, e.g., G Williams, `Recklessness redefined' (1981) 40 CLJ 252, 262. 3 Commissioner of Police for the Metropolis v Caldwell [1982] AC 341 (see, now, R v G and Another [2003] UKHL 50). 4 R v Brown [1994] 1 AC 212. 5 G Williams, Learning the Law (14th edn by A T H Smith, 2010) 107. 6 A brief history of the House of Lords' experiments with this approach to decision-making is included in L Blom-Cooper, `Style of judgments' in L Blom-Cooper, B Dickson & G Drewry (eds), The Judicial House of Lords 1876-2009 (2009) 145, 153-155.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. ‘A Most Difficult Case' 61 trial judges, in particular—to distinguish the ratio from any obiter dicta, and to proceed with some degree of certainty as to the state of the criminal law. WiththeadventoftheUnitedKingdomSupremeCourt(UKSC), it might have been hoped that something more like the CA's approach to deciding criminal cases would have been adopted and that the Justices would make an effort to produce one opinion, which would be concurred with by all of those who heard the case. If all else failed, there could be two opinions: one for the majority, and one for the minority. Unfortunately, the decision in R v Gnango7 demonstrates that the House of Lords' approach to criminal cases still reigns supreme.8 The ratio of the case is, to put the matter lightly, `difficult to discern' from the four reasoned majority opinions.9 Gnango had been convicted of murder.10 He had gone looking for another man (referred to in the appellate proceedings as `Bandana Man')11 who owed him money. Bandana Man saw Gnango coming, and so produced a gun and started firing at him. Gnango had taken his gun with him on this debt-collecting expedition, and shot back.12 During this exchange of fire, an innocent bystander was shot once in the head and killed. The question for the UKSC was whether Gnango's murder conviction could be sustained in such circumstances. Six of the seven judges13 who heard the case decided that the answer was `yes', with only Lord Kerr reaching the opposite conclusion. Thepurposeofthisshortessayisnottodecidewhowasright(though
7 [2011] UKSC 59. 8 Furthermore, in the legal year 2011-12, there were nine cases—including Gnango—that this journal has classified as being concerned with criminal law (see E Wolfers, `Overview: criminal law' in this volume). None of these had one judgment concurred in by all those who heard the case (apart from one interim hearing—see Stanford International Bank Limited (acting by its joint liquidators) v Director of the Serious Fraud Office [2012] UKSC 3). 9 D Ormerod, `Worth the wait?' [2012] Crim LR 79, 80. 10 The Court of Appeal quashed the defendant's conviction (see R v Gnango [2010] EWCA Crim 1691), but the prosecution appealed to the UKSC. Gnango was also convicted at trial of the attempted murder of Bandana Man and firearms offences. He did not appeal against these convictions. 11 The pseudonym was required because the man believed to be Bandana Man was arrested but never charged. 12 No argument about self-defence was raised in this case, perhaps because Gnango had armed himself well before Bandana Man's attack commenced. See, further, J Rogers, `Shooting (and judging) in the dark?' [2012] 1 Arch Rev 8, 8. 13 The rather imprecise term `judge' is used in preference to `Justice' as one member of the court wasLordJudgeCJ,whoisnotapermanentJusticeoftheSupremeCourt,yethassatonanumber of cases. 62 Findlay Stark
I suspect it was Lord Kerr),14 or criticise the judges' reasoning15 and failure to take seriously some of the important legal issues that loomed large in this case.16 Rather, it comments upon the majority's failure to present a clear account of why Gnango was a murderer. The majority reaches that conclusion by no fewer than three different routes, one of which (Lord Clarke's causation analysis, discussed below) was not left to the jury, so could not be used to uphold his conviction in this case. Regrettably, no one approach was adopted expressly by all six majority judges. Working out the ratio of Gnango is thus difficult. It is sensible to set out briefly the reasoning of the majority judges. First, Lords Phillips and Judge gave a joint judgment, with which Lord Wilson agreed (for ease of reading, this will be referred to as the judgment of Lords Phillips and Judge). They concluded that Gnango was convicted properly at first instance because he had encouraged Bandana Man's attempt on his life by shooting back whilst foreseeing that Bandana Man would retaliate by continuing to fire at Gnango with the intention of killing him (a version of events that the trial judge had rejected).17 Gnango was thus an accessory to his own attempted murder.18 Bandana Man's mens rea with regard to this attempted murder `transferred' to the innocent bystander, and her death transformed the attempted murder into a murder, for which Gnango was liable as an accessory,19 in virtue of section 8 of the Accessories and Abettors Act 1861: `Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence [...] shall be liable to be tried, indicted, and punished as a principal offender'. Theconsideredviewofthe(nowformer)PresidentoftheUKSCandtheLord Chief Justice (the head of the CA) must be given significant weight, and it appears crucial—given the important issues at stake in Gnango—that a united front was presented. It might be suspected that the CA will, in future, attach great weight to this joint view. As will be seen, however, two other members of the majority
14 The most persuasive argument to the contrary is contained in G Virgo, `Joint enterprise liability is dead: long live accessorial liability' [2012] Crim LR 850. Virgo's argument differs from those presented by the judges in the majority. 15 See, however, ibid; R Buxton, `Being an accessory to one's own murder' [2012] Crim LR 275. 16 Themostimportantissuethatwasnotdiscussed asmuch aswould havebeen desirablewas`joint enterprise liability'. See T Eatwell & C Sargeant `Criminal law, evidence and procedure', in this volume. Cf Virgo, above n 14. 17 Gnango, above n 10, para 38 (Thomas LJ). 18 This meant overcoming the precedent in R v Tyrrell [1894]1QB710. See Gnango, above n 7, paras 44-54 (Lords Phillips, Judge and Wilson); A P Simester et al, Simester and Sullivan's Criminal Law: Theory and Doctrine (4th edn, 2010) 250-251. 19 See the summary at Gnango, above n 7, para 55 (Lords Phillips, Judge and Wilson). ‘A Most Difficult Case' 63 did not endorse it without reservation. Lords Phillips and Judge thought that Lords Brown and Clarke agreed `essentially' with their reasoning,20 but when consideration is given to the individual judgments, it becomes questionable whether this is the case. This is because Lords Brown and Clarke considered Gnango's case one of primary, rather than secondary liability. Remarkably, Lords Phillips and Judge thought that the distinction between primary and secondary liability was `immaterial' in this case, meaning that they might be taken to agree with the analysis of Lords Brown and Clarke.21 It is worth explaining that Lords Phillips and Judge clearly didnotwanttobetakentomeanthatinthecriminallawingeneralthedistinction is irrelevant.22 But it is still, largely, a mystery why it does not matter in Gnango, given that the two routes to a murder conviction seem to involve substantially different twists and turns.23 So why did Lord Brown think that Gnango was primarily liable for the bystander's murder? He found that, because Gnango had participated in an instance of reciprocal unlawful violence `specifically designed to cause and in fact causing [the bystander's] death or serious injury',24 this was sufficient to secure liability for murder. Lord Brown does not go so far as to reject the analysis of Lords Phillips and Judge, but did not endorse it wholeheartedly.25 Lord Clarke adopted similar reasoning to Lord Brown.26 He also offered an alternative basis for liability, founded on causation, as a `postscript' to his judgment.27 Infiring(back),GnangohadprovokedBandanaManintocontinuing to shoot at him with the intention of killing him or causing him grievous bodily harm. This meant that Gnango was the cause of Bandana Man's shooting at him with the requisite mens rea for murder, and this caused the innocent bystander's death.28 Gnango thus caused (somewhat indirectly) the bystander's death, and
20 Ibid, para 62 (Lords Phillips, Judge and Wilson). 21 Founding on R v Giannetto [1997] 1 Cr App R 1, a case concerned with the unanimity of the jury's verdict where it was not clear whether the defendant killed the deceased, or rather employed someone else to do so for him. 22 Ibid, para 63 (Lords Phillips, Judge and Wilson). 23 See, similarly, Buxton, above n 15, 279. 24 Gnango, above n 7, para 71 (Lord Brown). 25 Ibid: `For my part I am not disposed to analyse [Gnango's] liability [...] in accessory terms'. 26 Ibid, para 75 (Lord Clarke). 27 Ibid, para 83. It is questionable whether this is a freestanding head of liability, given that—to be guilty of murder as a principal—Gnango would have to have caused the death of the bystander. See below; Buxton, above n 15, 278. 28 Gnango, above n 7, paras 84-92 (Lord Clarke). See R v Pagett (1983) 76 Cr App R 279. 64 Findlay Stark could be held liable, as a principal actor, for her murder.29 Lord Clarke was, at least initially, stronger in his rejection of the secondary liability analysis of Lords Phillips and Judge (drawing a distinction between provoking and encouraging another to act),30 but ultimately opined that `if [this case involves] a form of secondary liability, so be it'.31 It is thus difficult to discern his true thoughts regarding secondary liability. Again, the lack of attention to the line between primary and secondary liability is troubling because, beyond the agreement to shoot and be shot at, the routes to a murder conviction are substantially different. Next, Lord Dyson agreed with Lords Phillips and Judge about secondary liability,32 and with Lords Brown and Clarke regarding primary liability.33 He thought that, given that an agreement to shoot and be shot at was central to both analyses, the differences between primary and secondary liability were unimportant,34 but—again—this underplays the distinct steps to reach a murder conviction in each case. This is particularly problematic in that Lord Dyson departed from Lord Clarke's causation analysis, on the basis that Bandana Man's free and autonomous decision to shoot back would break the causal chain.35 It is not clear, then, how Lord Dyson can support that primary liability analysis, as that would require Gnango to have been a cause of the bystander's death. Indeed, if Lord Clarke's `postscript' is ignored, it is difficult to see how he and Lord Brown reached the decision that Gnango, rather than Bandana Man, caused the bystander's death. Finally, Lord Kerr's dissent deals with why each of the above grounds for considering that Gnango was a murderer is misconceived. His careful analysis deserves study. So, given this divergence of opinion, what is the ratio of the decision in this
29 This could not be used as a way of upholding this particular murder conviction, as the causal basis was not left for the jury. For criticism of the theory underlying Lord Clarke's analysis of the causation issue, see G R Sullivan & A P Simester, `Causation without limits: causing death while driving without a licence, while disqualified, or without insurance' [2012] Crim LR 753, 765-766. 30 Gnango, above n 7, para 76 (Lord Clarke); see also para 80: `I do not think that this is a case of aiding and abetting'. 31 Ibid, para 81. 32 Ibid, para 103 (Lord Dyson). 33 Ibid, para 105. 34 Ibid. 35 Ibid, para 106; R v Kennedy (No 2) [2007] UKHL 38. ‘A Most Difficult Case' 65
`difficult case'?36 Other than if the defendant makes a tacit agreement with another person to shoot and be shot at, both can be convicted of murder if someone is killed in the resulting fire fight, itisdifficulttobecertain. Thereasonsforthemajoritydecision seem to be as follows:
Judge(s) Secondary Primary Liability Primary Liability (agreement) Liability (causation) Philips, Judge & Yes Difference No view Wilson `immaterial' Brown Acceptable(?) Yes Noview Clarke (Un)acceptable Yes Yes(notleftto (?) jury) Dyson Yes Yes No
There is not one approach, then, in Gnango which received universal acclaim by the majority judges. At best, the primary liability analysis received the express assent of three judges, and the possible support of the other three,37 but the causal difficulties mentioned above make this approach seem unsustainable. The secondary liability analysis, which is at least theoretically viable, was adopted expressly by four judges, reservedly by one judge, and almost rejected by another. So the secondary liability basis for upholding Gnango's murder conviction presumably `wins', but only by the slimmest of margins (on one view, 4:3). If this is right, then the ratio of Gnango might be stated as follows: where D1 and D2 agree to shoot and be shot at, and engage in a gun fight in which V is killed, D1 is primarily liable for V's murder where his bullet causes V's death, through the operation of transferred malice, and D2 is secondarily liable for V's murder on the basis that he encouraged D1 to continue shooting at him with the intention to kill. Given the differences of opinion in Gnango, it is submitted that this ra- tio—cumbersome as it is—is hardly a strong basis upon which to proceed, and it might be wondered whether future cases involving similar fact situations will find much of use in the UKSC's judgment.38 Prosecutors, defence counsel and trialjudgesmightwellfindthedecisiondifficulttoapplyinthefuture. Itmightbe
36 Gnango, above n 7, para 107 (Lord Dyson). 37 Some commentators have been less hesitant. See, e.g. Rogers, above n 12, 8. 38 Buxton, above n 15, 279. 66 Findlay Stark thought that this is not problematic. After all, the facts of Gnango were somewhat strange, and unlikely to be repeated often. Elements of the UKSC's judgment are, nevertheless, expressed in wide terms capable of application beyond the facts.39 The decision in Gnango cannot, therefore, be regarded as inconsequential. This is the first reason why it is regrettable that, in the first truly significant case on the substantive criminal law to reach them,40 the UKSC could not present a clearer picture. There is much talk of agreement in the judgment; there is at points little evidence of it. What is clear in all of the majority judgments, and deserves closer inspection than can be given here, is the extent to which the UKSC was concerned to state how its conclusion (if not its reasoning) would accord with the public's conception of justice and `policy'.41 A murder conviction was `in the interests of justice'.42 `The general public would in my opinion be astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot.'43 It might be wondered whether a fixation on the `right' result led to a lack of concern for the route taken towards it.44 The persuasiveness of this decision turns, then, not on the acceptance of one legal analysis over another, but rather on whether the view is taken that Gnango should have been convicted of murder. This is not encouraging, and might even constitute a human rights violation. Rogers has argued that, given that the basis upon which the jury is found to have convicted Gnango of murder shifted constantly through the appellate process, the defendant (and, indeed, anybody else) cannot be sure why a murder conviction was returned properly at his trial.45 That seems a prima facie breach of Article 6 following the decision in Taxquet v Belgium.46 This is the second reason why it is regrettable that the majority of the UKSC failed to present a more united front in this case.
39 See, further, Gnango, above n 7, para 1 (Lords Phillips, Judge and Wilson). 40 `The decision of the Supreme Court in Gnango is one of the most significant decisions on the substantive criminal law in England and Wales for many years': Virgo, above n 14, 850. 41 Gnango, above n 7, paras 2 (Lords Phillips, Judge and Wilson), 81 (Lord Clarke). 42 Ibid, para 61 (Lords Phillips, Judge and Wilson). 43 Ibid, para 68 (Lord Brown). See, further, ibid, paras 69-71. 44 For similar concerns, see Buxton, above n 15, 280-281; Ormerod, above n 9, 80. 45 Rogers, above n 12, 9. 46 (2012) 54 EHRR 26. DOI: 10.7574/cjicl.02.01.97 Cambridge Journal of International and Comparative Law (2)1: 67–76 (2013)
Scotland and the Supreme Court
Lord Drummond Young*
TheUnitedKingdomwascreatedbytheTreatyofUnionof1707,mergingthetwo existing kingdoms of England and Scotland. The Treaty preserved the existence of Scots law as a separate legal system and specifically excluded any recourse to the English courts.1 Nevertheless, as early as 1709, the House of Lords held in Greenshields v Magistrates of Edinburgh2 that it had jurisdiction to hear appeals from the Court of Session. That jurisdiction has now been transferred to the Supreme Court of the United Kingdom, which continues to hear such appeals.3 The House of Lords did not, however, hear appeals from Scottish criminal cases.4 Despite this, when Scottish devolution was introduced by the Scotland Act 1998, thePrivyCouncilwasgivenjurisdictiontohearappealsagainstthedetermination of what are known as `devolution issues' by the High Court;5 a category which includesquestionsofthecompatibility ofanydecision oftheHigh Courtwith the European Convention on Human Rights.6 That jurisdiction has itself now been transferred to the Supreme Court,7 and it is fair to say it has been interpreted in a very expansive manner. SincetheSupremeCourtassumedthejurisdictionsoftheHouseofLordsand the Privy Council, most of its Scottish decisions have been of relatively limited scope. Two recent decisions stand out however and I would like to consider these in a little detail. The cases in question, drawn from very different areas of the law, are Cadder v HM Advocate8 and Royal Bank of Scotland PLC v Wilson.9 Although the subject matter of the two cases is quite different, they have important features in common. First, in both cases an established practice had grown up which was very widely used; in Cadder this related to police questioning of suspects;
* Senator of the College of Justice. 1 Treaty of Union 1707 Art XIX. 2 (1709) 1 Rob 12. 3 Constitutional Reform Act 2005 s 40. 4 Criminal Procedure Scotland Act 1995 s 124(2). 5 Scotland Act 1998 s 98 and para 13 of Schedule 6. 6 Scotland Act 1998 para 13(a) of Schedule 6. 7 Constitutional Reform Act 2005 s 40. 8 [2010] UKSC 43. 9 [2010] UKSC 50.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 68 Lord Drummond Young in Royal Bank v Wilson it related to the manner in which a standard security (a security over land; the equivalent of a mortgage) could be enforced. Secondly, in both cases the Supreme Court's decision held the existing practice to be wrong, with very serious results for the areas of law concerned. Thirdly, in both cases judgment was based on a very literal, one might even say over-literal, application ofalegaltext;in Cadder thetextwasajudgmentoftheEuropeanCourtofHuman Rights; in Royal Bank v Wilson it was a section of the statute that created the standard security. It is perhaps a matter of some concern that the Supreme Court has shown itself willing to overturn well-established Scottish practice on an essentially formal basis, without having much regard to the underlying substance of the law. Prior to the decision in Cadder, a practice had developed for dealing with suspects taken into police custody. This was ultimately given statutory form in sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Under these provisions, police were given power to detain a suspect for up to six hours and to question him during this period. When he was detained, the suspect had to be informed of the general nature of the offence that was suspected and that he had the right to have intimation of his detention sent to a solicitor and to one other person. Before questioning began, the suspect was informed that he was under no obligation to say anything and that any answers might be admissible as evidence against him in subsequent legal proceedings. The police interview was tape recorded and, in recent years, it was usually videoed. The transcript could be used in evidence at a subsequent trial and it very frequently was so used. At the end of the interview, or after six hours (whichever came first) the suspect had to be either formally charged with an offence or released. During questioning, however, a suspect was not permitted access to a solicitor and it was this critical feature that was challenged in Cadder. Nevertheless, it had been laid down in repeated decisions of the High Court of Justiciary (the highest criminal court in Scotland) that such questioning had to be fair; anything of the nature of interrogation or cross-examination would make the questioning unfair, rendering the answers inadmissible in evidence.10 The use of police interviews was frequently challenged successfully on this ground. In Salduz v Turkey,11 the Grand Chamber of the European Court of Human Rights held that Article 6(3)(c) of the European Convention on Human Rights had been violated in a case where the applicant did not have the benefit of
10 See e.g. Chalmers v HM Advocate 1954 JC 66. 11 (2008) 49 EHRR 421. Scotland and the Supreme Court 69 legal assistance whilst he was questioned in police custody. The facts of the case were somewhat extreme; the applicant was aged 1712 and was taken into police custody at 10.15pm by the anti-terrorism branch of the Izmir Security Directorate on suspicion of having taken part in an unlawful demonstration in support of an illegal (Kurdish) organisation and of hanging an illegal banner from a bridge. At 1am he was `interrogated' (the word used in the report) by the anti-terrorism branch, and made various admissions which amounted to a confession to the suspected offences. He subsequently maintained that the confessions had been extracted under duress, buthe was convicted and sentenced to a substantial period of imprisonment. The European Court of Human Rights held that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer is a fundamental feature of a fair trial.13 Nevertheless, Article 6(3)(c) did not specify the manner of exercising the right, and thus contracting states are allowed a choice of means to achieve that end. The right had been recognised as subject to restrictions for good cause. The Court went on, however, to hold that:
Against this background [...] in order for the right to a fair trial to remain sufficiently `practical and effective' article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction [...] must not unduly prejudice the rights of the accused under article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.14
In the application of this paragraph to Scots law, three comments seem pertinent. First, the formulation is expressed as a general rule, and not in absolute terms which admit of no exception; that is clear from the expression `as a rule' and the reference to the possibility of compelling reasons to restrict the right. Secondly,
12 Cf Chalmers v HM Advocate,aboven10,wheretheaccusedwasaged16andthepolicequestioning was held to be manifestly unfair and thus inadmissible. 13 Salduz, above n 11, paras 51-52. 14 Salduz, above n 11, para 55, emphasis added. 70 Lord Drummond Young underScottish criminalprocedure, itisquiteimpossibleto obtain aconviction on the sole basis of answers given in a police interview. For a conviction, Scots law requires that both the commission of a crime and the identity of the perpetrator should be established by corroborated evidence, that is to say, evidence from more than one source.15 Thus in Scotland, the significance of answers to police questioning was inevitably limited, and could never by itself be sufficient for a conviction. Thirdly, the admissibility of answers to police questioning is always subject to an overall test of fairness, and the recording of interviews on tape and video meant that this requirement could be properly enforced.16 In Cadder, the appellant had been detained and questioned in the usual way. Relianceonanswersgivenduringthepoliceinterviewwaschallengedonthebasis of the Grand Chamber's decision in Salduz. A similar argument had previously failed in the High Court of Justiciary, on the ground that the European Court of Human Rights had not stated unequivocally that police questioning without accesstolegaladvicewasinadmissibleinallorvirtuallyallcases.17 IntheSupreme Court, however,itwasheldthattheinterpretationadoptedintheHighCourtwas not tenable. Lord Hope stated:
The admissibility of evidence [...] is primarily a matter for the domestic legal systems of the contracting states. But there is no hint anywhere in [the judgment of the Grand Chamber in Salduz] that it had in mind that the question of whether or not a detainee was interrogated without access to a lawyer has had a fair trial will depend on the arrangements the particular jurisdiction has made, including any guarantees otherwise in place there. Distinctions of that kind would be entirely out of keeping with the Strasbourg court's approach to problems posed by the Convention, which is to provide principled solutions that are universally applicable in all the contracting states. It aims to achieve a harmonious application of standards of protection throughout the Council of Europe area, not one dictated by national choices and preferences.18
With all respect, it is difficult to see how this follows. The Strasbourg Court has made it clear that it is not its function to prescribe detailed rules of 15 Douglas v Provident Clothing and Supply Company 1969 SC 32 at 36 (Lord President Clyde). 16 Chalmers, above n 10. The police interview in Salduz would almost certainly have been inadmissible in Scots law. 17 See e.g. HM Advocate v McLean [2009] HCJAC 97, paras 23-29 (Lord Justice General). 18 Cadder, above n 8, para 40 (Lord Hope). Scotland and the Supreme Court 71 law for individual domestic legal systems, provided that a trial under the individual system meets the minimum standards prescribed by the Convention. Indeterminingwhetherthosestandardsaremet,itisthewholejudicialprocedure before and during the trial that is taken into account.19 If such an approach is taken to Scottish criminal procedure, the arrangements at the interview must be taken into account together with such features of Scottish procedure as the need for corroboration and the inadmissibility of admissions made by a suspect following `interrogation' or `cross examination'.20 What the Supreme Court did was rather to look at the formulation adopted by the Grand Chamber in Salduz and apply it literally to the Scottish system of police interviews, disregarding the other features of the Scottish system. It was those features, of course, that put the significance of the police interview procedure into context. Later in his judgment, Lord Hope examined other Strasbourg cases and concluded that Salduz had been consistently applied, to the effect that `the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction'.21 He gave some consideration to the safeguards available under the Scottish system, but took the view that these did not permit escape from the Salduz ruling:
As I have already said, the ruling in para 55 of Salduz must be read as applicable equally in all the contracting states. There is room for a restriction of the right of access to a solicitor during the police interrogation, but only if there are compelling reasons [...] The guarantees otherwise available are entirely commendable. But they are, in truth, incapable of removing the disadvantage that a detainee will suffer if, not having had access to a solicitor or advice when he is questioned by the police, he makes incriminating admissions or says something which enables the police to obtain incriminating evidence from other sources which is then used against him at his trial.22
19 See e.g. Taxquet v Belgium (2012) 54 EHRR 26; Judge v United Kingdom (2011) 52 EHRR SE17. 20 See e.g. Chalmers, above n 10. 21 Cadder, above n 8, para 47 (Lord Hope). The expression `used for a conviction' is ambiguous: does it mean as one element in the evidence (as must be the case in Scotland) or as evidence that in itself justifies a conviction (which would be possible in most other legal systems)? 22 Cadder, above n 8, para 47 (Lord Hope). It should be noted that the wider statements in this paragraph were subsequently departed from by the Supreme Court in P v HM Advocate [2011] UKSC 44. 72 Lord Drummond Young
This passage appears to reinforce the earlier approach: the statement of law by theGrandChamberinparagraph55of Salduz mustbeappliedliterallytoallofthe legal systems of Council of Europe states, and there is no room for considering the features of any individual system looked at as a coherent whole. That does seem to represent a considerable departure from the self-understanding of the Strasbourg Court, which has repeatedly emphasised that it deals with domestic systems of criminal procedure as a totality, so that particular features of criminal procedure are put into proper context. Following the decision in Cadder, a large number of disputed cases arose, a number of which required decisions in the Supreme Court.23 Problems continue: it is perceived by the Scottish law officers and by the Crown Office and Procurator Fiscal Service, the Scottish public prosecution agency, that the non-availability of evidence obtained at police interviews has tipped the balance too far in favour of the accused. This applies in particular to charges of rape, where admissions made at interview were often of importance. The result has been a proposal to abolish the requirement of corroboration, which looks likely to be adopted.24 Moreover, the Scottish Law Commission has published a report on Similar Fact Evidence which recommends that previous convictions should, within certain limits, be routinely placed before juries.25 If these proposals are implemented, there can be little doubt that the position of the accused in Scottish criminal procedure will be markedly worse than before the decision of the Supreme Court in Cadder. One other feature of the case is of interest. Lord Rodger concurred in Lord Hope's opinion, but delivered a further opinion of his own, in which he pointed out that the French and English texts of the judgment of the Grand Chamber in Salduz differ.26 The French text of paragraph 55 requires that access to lawyer should be available `en regle generale'; in the English version this appears as `as a rule'. The French version makes it clear that what is envisaged is a rule that is general rather than universal, with the clear inference that individual systems may opt out of it provided that they have other compensating safeguards in place. This illustrates a major difficulty with a literal approach to judgments of the
23 See e.g. Ambrose v Harris [2011] UKSC 43; P v HM Advocate, above n 22. 24 Following a review by Lord Carloway, now the Lord Justice Clerk: Reforming Scots Criminal Law and Practice: The Carloway Report (17 November 2011); the recommendation to abolish corroboration is widely opposed in the legal profession and Scottish judges. 25 Scottish Law Commission, Report on Similar Fact Evidence and the Moorov Doctrine, (Scot Law Com No 229, 2012). 26 Cadder, above n 8, paras 68-70 (Lord Rodger). Scotland and the Supreme Court 73
Strasbourg Court (and indeed the Court of Justice in Luxembourg): the texts in different languages will almost inevitably differ, and complicated comparisons may be necessary to discover the underlying meaning. The second case that I would like to discuss is in a very different area of law. In 1970, a new form of security over land was introduced in Scotland known as the standard security.27 It is a true security rather than a security disguised as a conveyance; in this respect it differs from the previous forms of security available in Scots law and also, I understand, the English mortgage. The standard security has been very successful, but it has come to be recognised that the procedures for enforcement are imperfect and require some revision.28 The Conveyancing and Feudal Reform (Scotland) Act 1970 provided two principal methods of enforcing a security. The first is contained in section 19(1), which provides as follows:
Where a creditor in a standard security intends to require discharge of the debt thereby secured and, failing that discharge, to exercise any power conferred by the security to sell any subjects or any other power [...] he shall serve a notice calling-up the security in conformity with [a specified form, as contained in Schedule 6]. (Emphasis added).
If the debtor fails to comply with the calling-up notice by making payment of the fullsum duewithin two monthsofserviceofthenotice, thecreditormay exercise any of his rights under the security, including the power to sell the security subjects. The second method of enforcement is found in section 21, which applies when the debtor is in default through a failure to comply with any requirement arising out of the security other than the requirement to comply with a calling-up notice. In that event, the creditor may serve a notice of default, requiring the debtor to purge the default. The debtor has power to object to a notice of default, in which case the court has power to set aside the notice. Otherwise, however, if the debtor does not comply with the notice of default within one month, the creditor may exercise any of his remedies under the security, including sale of the security subjects, although formal procedures are required for the ejection of the debtor from the property.
27 Conveyancing and Feudal Reform (Scotland) Act 1970 ss 9-32. 28 The Scottish Law Commission intends to examine the standard security as part of its current, eighth, programme of law reform. The enforcement procedures will form the major focus of the Commission's review. It can safely be said that the approach adopted in Royal Bank of Scotland v Wilson will not be followed. 74 Lord Drummond Young
It has never been entirely clear why these remedies are structured as they are. It may be that in the 1960s, when the 1970 Act was drafted,29 secured debts were typically payable only on demand, with the result that a formal procedure such as a calling-up notice would be necessary to make the debt payable. In modern practice, however, loan agreements tend to be more prescriptive than formerly, with the result that a failure to pay interest or an instalment of the principal sum will result in automatic default. Whatever the reason may be, the practice had developedusingthenoticeofdefaultprocedureandsection21toenforcestandard securities, rather than the calling-up procedure under section 19. This procedure was simpler and quicker, and it had the advantage that, in cases where the debtor had been rendered bankrupt, or had indicated that he wished to surrender the security (for example, by handing over the key to the property, which is not an uncommon occurrence), the creditor could proceed to immediate enforcement andsale. Thisresultedinasignificantreductioninthecostofenforcement,which clearly worked to the benefit of both parties in cases where the debtor's position was hopeless. Such a procedure had the support of the late Professor Halliday, the author of the 1970 Act,30 and its validity was affirmed by the Court of Session in Bank of Scotland v Millward31 and subsequently in Royal Bank of Scotland PLC v Wilson.32 In the last of these cases, the section 21 procedure was used in the ordinary way. The Court of Session permitted the enforcement of the standard security using that procedure and no attempt was made to argue that that procedure was invalid in any way; this was unsurprising in view of the earlier decision in Millward. When the case reached the Supreme Court, no attempt was made to argue that the section 21 procedure was itself invalid; the argument concentrated on other aspects of the case, in particular the precise remedy that was available to the bank (which did not turn on the scheme or wording of the 1970 Act). The Supreme Court, however, focused on the use of the word `shall' in section 19(1),33 and held that that wording was mandatory: if the creditor wanted to take possession or sell the security subjects in consequence of the non-fulfilment of a monetary obligation contained in the standard security, it was compelled by the Act to serve a calling-up notice and the alternative remedy of a notice of default was
29 The Act resulted from the report of the Halliday Committee, Report on Conveyancing Legislation and Practice (Cmnd 3118), published in December 1966. 30 J Halliday, Conveyancing Law and Practice (2nd ed), vol 2, para 54-05. 31 1999 SLT 901. 32 2009 SLT 729. 33 See Royal Bank, above n 9, para 23 (Lord Rodger). Scotland and the Supreme Court 75 not available.34 As in Cadder, the approach taken is very literal, although in this case the legal text that was applied in that way was a section of an Act of Parliament rather than a judgment of European Court of Human Rights. The word `shall' has, of course, frequently been construed as permissive rather than mandatory,35 and the Court of Session so construed the word in its decision in Millward.36 As explained above, the notice of default procedure had considerable practical advantages, which probably influenced the views expressed by Professor Halliday following the passing of the 1970 Act. Perhaps more important is the fact that the notice of default procedure represented current practice among solicitors who advise banks and other lenders. The decision of the Supreme Court caused very substantial disruption in the enforcement of securities and a large number of disputed cases in the lower courts.37 The resulting chaos has yet to be properly resolved and it is understood that a test case is pending in the Court of Session. In conclusion, however, I should point out that not all the recent Scottish cases in the Supreme Court have had such unhappy consequences as Cadder and Royal Bank v Wilson. Three such cases should perhaps be briefly mentioned. In Farstad Supply AS v Enviroco Ltd,38 the Supreme Court corrected a clearly erroneousviewtakenbyamajorityintheCourtofSessionofanindemnityclause. In Inveresk PLC v Tullis Russell Ltd,39 it corrected serious limitations that had been imposed on the right of a party to a contract to withhold performance pending performance by the other party. This right, which is generally known as the right of retention, performs a function that is in some respects similar to that of the equitable interest that may arise under certain categories of contract in English law and is clearly important.40 Finally, in Morris v Rae,41 it refused to recognise a rather pointless procedural limitation that the Court of Session had placed on
34 Royal Bank, above n 9, paras 22-24 and 35-51 (Lord Rodger). 35 For example, Stroud's Judicial Dictionary of Words and Phrases (7th ed), volume 3 at 2522-2525, gives 17 examples of cases where the word has been so construed, usually with reference to the underlying policy of the Act in question. 36 1999 SLT 90. 37 See e.g. trenchant criticism in G Gretton, `Upsetting the apple-cart: standard securities before the Supreme Court' (2011) 15 Edinburgh Law Review 251. 38 [2010] UKSC 18. 39 [2010] UKSC 19. 40 The incoherence in the modern law stems, however, from the decision of the House of Lords in Bank of East Asia v Scottish Enterprise 1996 SLT 1213, followed rather uncritically by the Court of Session in Macari v Celtic Football and Athletic Club Ltd 1999 SC 628. 41 [2012] UKSC 50. 76 Lord Drummond Young the right to enforce warrandice (the guarantee of title) in a sale of land.42 In all these cases it can be said that the Supreme Court was a very positive influence in the development of Scots law. Thus the recent record of the Supreme Court in Scottish cases can perhaps be described as mixed. Future developments may be awaited with interest.
42 Thelimitationwasthatthepersonmakingathreatofevictionrequiredtohaveanunquestionable title to the land at the time when the threat was made. The Supreme Court held that it was sufficient that there should be a threat of eviction by a person who was in a position to make good his challenge to the purchaser's title. The latter is clearly a much more practical criterion. DOI: 10.7574/cjicl.02.01.77 Cambridge Journal of International and Comparative Law (2)1: 77–85 (2013)
Protecting the Interests of the Child
Godsglory Ifezue Maria Rajabali
1 Introduction
The Supreme Court's decisions relating to family law in the 2011-12 legal year1 involved grappling with a range of complex issues, including child abduction and extraditionorders. TheSupremeCourtwasfacedwiththeneedtoexamineissues such as the ownership rights of property between cohabiting couples,2 and the role of the state in the upbringing of children.3 Many of these cases concerned the general welfare of the state and the Supreme Court had to wrestle with balancing the privacy of families against the wider public interest. The majority of the decisions made in this legal year in the arena of family law were influenced significantly by the involvement of children within these cases. The Supreme Court dealt with these legal issues by adopting the best interest of the child principle and promoting the welfare of the children involved in these disputes. However, not only has the Supreme Court's approach differed from that of the European Court of Human Rights (ECtHR) in its interpretation of Article 8 of the European Convention on Human Rights (ECHR), but the results reached under this approach have also been criticised.
1 In its third year, the Supreme Court decided ten cases relating to family law: Gow v Grant (Scotland) [2012] UKSC 29; ANS and another v ML (Scotland) [2012] UKSC 30; NJDB v JEG and another (Scotland) [2012] UKSC 21; HH v Deputy Prosecutor of the Italian Republic, Genoa, PH v DeputyProsecutoroftheItalianRepublic, GenoaandF-K(FC)vPolishJudicialAuthority [2012] UKSC 25; Jones v Kernott [2011] UKSC 53; Humphreys (FC) v The Commissioners for Her Majesty's Revenue and Customs [2012] UKSC 18; Re T (Children) [2012] UKSC 36; BH (AP) and another v The Lord Advocate and another (Scotland), KAS or H (AP) v The Lord Advocate and another (Scotland) [2012] UKSC 24; ReS(aChild) [2012] UKSC 10; R (on the application of Quila and another) (FC) v Secretary of State for the Home Department, R (on the application of Bibi and another) (FC) v Secretary of State for the Home Department [2011] UKSC 45. 2 Jones v Kernott, above n 1. 3 The joint appeals of BH (AP)and KAS or H (AP), above n 1.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 78 Godsglory Ifezue and Maria Rajabali
2 The best interest principle—a difference between the national and international approach?
The best interest principle is not only applied in domestic law, but is an international concept as well. Article 3 of the United Nations Convention on the Rights of the Child 1989 (UNCRC) establishes an obligation on states to ensure that, in all decisions concerning children, `the best interests of the child shall be a primary consideration'. This principle is worded differently in both civil and common law systems.4 In the United Kingdom, the preferred wording is that of the `welfare of the child' as found in the Children Act 1989. This Act imposes an active duty on the courts to consider the child's welfare as paramount in determining questions relating to the upbringing of a child or the administration of a child's property.5 It obliges the court to begin with a consideration of the child's best interest as a sole factor, and only then concern itself with the rights of any other parties involved.6 The ECHR, however, is more passive, merely entitling persons to a right to a family life under Article 8, treating parents and children in the same fashion.
3 The best interest principle—the application
The importance attached to the welfare principle in the decisions made by the Supreme Court in this legal year is best illustrated by the case of Re T (Children).7 ThequestiondecidedbytheSupremeCourtwaswhetheralocalauthorityshould be made to pay costs for bringing an unsuccessful claim alleging that a father and his friends were sexually abusing a child. The Supreme Court took into account two opposing views. The first was the consideration that costs should be awarded because the increasing number of people that had to face life-changing
4 This is in contrast with most Roman-Dutch common law jurisdictions where the term `the best interest of the child' is adopted lock, stock and barrel as part of both the unwritten common law and statute law. For instance, in South Africa, the principle forms part of the common law and has found its way into the South African Constitution 1996: See E Bonthuys, `The best interests of children in the South African Constitution' (2006) 20(1) Int J Law Policy Family 23. In Botswana the term `the best interest of the child' is used both in the Children's Act 2009 s 5 and in the Customary Law Act 1969 s 6. See also Mazile v Mazile [2001] 1 BLR 175. 5 Children Act 1989 s 1(1). 6 J v C [1970] AC 668. 7 Re T, above n 1. Protecting the Interests of the Child 79 allegationswithoutanyfinancialassistancefrom thestatewasunacceptable.8 The second argument was that under the Children Act 1989, there were several duties imposed on the local authorities with respect to the care of children.9 If a local authority receives information about a child being a victim of serious harm, it is obliged to investigate and thus, in order for justice to prevail, costs could not be imposed against a local authority.10 The Supreme Court favoured the latter argument and refused to award costs. It upheld the best interest principle by viewing an imposition of costs on a local authority as a disincentive for it to take complaints seriously, resulting in disastrous consequences for children within its area.
4 The best interest principle—a critique?
The best interest principle sends an important symbolic message to society regarding the significance and vulnerability of children.11 It ensures that an important group within society unable to advocate for their own rights is protected by the law. However, in terms of its application, this principle has been criticised by several academics. Herring has highlighted the main flaws listed in the existing literature.12 This article will examine some of these criticisms in light of the decisions made by the Supreme Court in the legal year 2011-12.
4.1 A constricted interpretation of welfare The broad range of factors—genetic, financial, educational, environmental and relational—which science would recognise as capable of affecting the welfare of a child are narrowed by law to a small range of issues which fall directly under the influence of the judge, the social workers or the adult parties to the litigation process.13 This criticism should be examined in lightof Humphreys.14 This case involved the payment of Child Tax Credit. The Tax Credits Act 2002 incorporates a
8 Ibid, para 19 (Lord Phillips). 9 Ibid, para 32 (Lord Phillips). 10 Ibid, para 42 (Lord Phillips). 11 J Herring, Family Law (4th edn, 2005) 432. 12 Ibid, 432-434. 13 M King & C Piper, How the Law Thinks about Children (2nd edn, 1995) 50. 14 Humphreys, above n 1. 80 Godsglory Ifezue and Maria Rajabali
`no-splitting' policy, which means that the Child Tax Credit is a single payment and cannot be split between two parents. Where the parents are separated, the ChildTaxCreditisonlypayabletotheparentprimarilyresponsibleforthechild.15 The issue to be decided by the Supreme Court was whether this policy could be categorised as discriminatory for favouring the mother more than the father, as she was likely to spend more time with the child. The Supreme Court examined the case of Hockenjos v Secretary of State for Social Security,16 which arose prior to the introduction of the Tax Credits Act. In this case, entitlement to child personal allowances under the Jobseeker's Allowance depended on the receipt of child benefit. The Court of Appeal held that because men seldom qualify as they are less likely to be the primary carer, this rule amounted to indirect discrimination.17 Lady Hale agreed that the `no-splitting' policy was discriminatory, but departed from the ratio of Hockenjos to conclude thatthe discrimination was not`manifestly without reasonable foundation',18 and therefore could be justified. Lady Hale's reasoning was that instead of splitting the payment between two households resulting in only modest means for both, the child would benefit more from having the funds directed to one household only, i.e. the household where the child spent most of the time.19 Also taken into consideration was that member states enjoyed a margin of appreciation in implementing measures to achieve their social and economic goals,20 and that one payment would be easier and cheaper for HM Revenue and Customs to administer.21 This is a decision where the Supreme Court clearly took into account the welfareprinciple. However,itcanbearguedthatinsomesituations,ifthecreditis only provided to the primary carer, and the secondary carer receives no financial assistance, this may impact the amount of time the latter will be able to spend with the child. In its application of the welfare principle, the Supreme Court assumed that it was in the child's best interests for the credit to be made as a single payment and made a generalised decision. Unless consideration is given specifically to the child whose interests are in question, the protection provided
15 HM Treasury and the Inland Revenue, `The child and Working Tax Credits: the mod- ernisation of Britain's tax and benefits system' April 2002
4.2 Unfairness to adults The best interest principle has also been criticised for failing to provide adequate protection to the interests of other parties involved in the dispute,23 and it has been said that `the very ease of the welfare test encourages a laziness and unwillingness to pay proper attention to all the interests that are at stake'.24 A decision made by the Supreme Court in the legal year 2011-12 serves as an example of how judges may neglect the interests of the parent. In the Scottish case of ANS,25 the question to be determined by the Supreme Court was whether section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 (which allowed parental consent to adoption to be dispensed with where this was required to protect the welfare of the child) was incompatible with the right to a family life under Article 8 of the ECHR. The Supreme Court held that section 31(3)(d) was in accordance with the law, furthered a legitimate aim and was necessary.26 In coming to this conclusion, Lord Reed placed emphasis on upholding the welfare principle, finding that there must be an `overriding requirement'27 to protect the child for the adoption to proceed without the parent's consent. Lord Reed referenced the principle that `the court should begin with a preference for the less interventionist rather that the more interventionist approach'.28 He recognised that it was vital that the courts work under the presumption that even the most general words must be interpreted in light of the fundamental rights of the individuals involved.29 It thus seems as though the Supreme Court was sensitive to the interests of the parents in this case, and will only find that an interference with their rights is justified where it is necessary to do so in order to protect the child. Lord Reed referenced the need to take into account all the relevant factors before deciding on the necessity of such an order. He cited the case of YC v United Kingdom,30 where the ECtHR stated that the factors needed to be considered involved, in
22 J Bridgeman, Parental Responsibility, Young Children and Health Care Law (2007) 9. 23 Ibid, 303. 24 J Eekelaar `Beyond the welfare principle' (2002) 14 Child and Family Law Quarterly 237, 248. 25 ANS, above n 1. 26 Ibid, para 39. 27 Ibid, para 34. 28 Re O (Care or Supervision Order) [1996] 2 FLR 755, 760. 29 R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131. 30 [2012] ECHR 433. 82 Godsglory Ifezue and Maria Rajabali particular, `the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with its relatives'.31 None of the above factors are concerned with the interests of the parents, but instead, the focus is on the child. In fact, Lord Carnwath stated that there was no longer any room for ambiguity as it has been confirmed that where a decision involves children, their best interests remain paramount.32 It is thus arguable that while the Supreme Court does seem to take into account the interests of the parents, this is only done on a superficial basis. The application of the welfare principle can, therefore, sometimes be seen to produce unfair results for the parents involved.
4.3 Uncertainty
The application of the welfare principle involves several unknowns. The facts of the case may not often be complete, as there may only be the conflicting evidence of the parents to rely on.33 Even where all the information has been revealed, it is often difficult to predict where the welfare of the child lies. The uncertainty resulting from the abstractness of this principle can be demonstrated by the cases of HH vDeputyProsecutoroftheItalianRepublic, PH vDeputyProsecutoroftheItalian Republic, and F-K (FC) v Polish Judicial Authority, which were dealt with jointly by the Supreme Court.34 The issue to be determined was whether extraditing the appellants would impact their children so as to cause a breach of Article 8 of the ECHR. With regards to F-K, the Supreme Court held that as the extradition would have a serious effect on her children who were at a vulnerable age, and the offences she committed were not of a grave nature, the interference with her rights under Article 8 could not be justified.35 Here, the private interest overrode that of the public.36 However, HH's offences were severe, and as she was not the primary carer of her children, the public interest in ensuring her extradition outweighed the welfare principle.37 While the majority of the Supreme Court felt
31 Ibid, para 135. 32 ANS, above n 1, para 74 (Lord Reed). 33 Herring, above n 11, 433. 34 HH, PH, F-K, above n 1. 35 Ibid, para 45 (Lady Hale, diss). 36 Ibid. 37 Ibid. Protecting the Interests of the Child 83 thesameaboutPH,LadyHaledissented, arguingthatremovingthechildrenfrom both PH and HH would have disastrous consequences for the children.38 These decisions are of interest because they reflect how the application of the welfare principle in similar facts can lead to different results. F-K and HH were both mothers of young children and had committed offences. Yet, the best interest principle dictated that while F-K must remain, HH was to be extradited. This exemplifies that `[t]he determination of what is ``best'' or ``least detrimental'' for a particular child is usually indeterminate and speculative'.39 The welfare principle can thus give rise to inconsistency and uncertainty.
5 From a Supreme Court perspective: Article 8 ECHR v the paramountcy principle
The difference between the approaches of the Supreme Court and that of the ECtHR aremostobviouswhen consideringadoption cases. Foraverysubstantial period of time, the jurisprudence of the ECtHR and the domestic courts on adoption varied, not in their outcome, but in their approach to the best interest principle. This was especially so in cases that dealt with the disposal of parental consent for adoption. Domestic law requires the judge to start from the premise that the child's welfare will be the sole consideration, with the rights of other parties a relevant consideration only in so far as they contribute to promoting the child's best interests.40 On the other hand, Article 8 requires the judge to first evaluate the rights of the applicant to respect for family and private life, and then determine whether the infringement of this right has been in accordance with the law, pursues a legitimate aim, and is necessary in a democratic society. It is only recentlythattheECtHRtooktheopportunityinthecaseof YCvUnitedKingdom41 to provide guidance on the compatibility of the two regimes. In this case, the ECtHR accepted that there had been a serious interference with the complainant mother's right to respect for family life under Article 8, and went on to consider whether this interference was justified. In doing so, the ECtHR found that the decision was in accordance with the law, and pursued the legitimate aim of protecting the best interests of the child. The only question that
38 Ibid, para 87 (Lady Hale, diss). 39 R Mnookin, `Child-custody adjudication: judicial functions in the face of indeterminacy' (1975) 39(3) Law and Contemporary Problems 226, 229. 40 J v C, above n 6. 41 YC, above n 30. 84 Godsglory Ifezue and Maria Rajabali remained was whether the interference was necessary in a democratic society, relevant and sufficient, and proportionate to the aim pursued.42 In undertaking this analysis, the ECtHR reiterated that in cases concerning adoption, the best interests of the child are paramount. Furthermore, without any extensive evaluation, it held that `the considerations listed in section 1 of the 2002 Act […] broadly reflect the various elements inherent in assessing the necessity under article 8 of a measure placing a child for adoption'.43 In light of this, and the margin of appreciation given to states, the ECtHR found that there had been no interference with the mother's Convention rights. This decision indicates the ECtHR's approval of the domestic approach, and reflects a substantial shift in its attitude toward children, at least in cases concerning adoption.44 This also implies that relevant Supreme Court jurisprudence has played a significant role in defining the manner in which the ECtHR will interpret Article 8 in terms of adoption.
6 Conclusion
The best interest principle is not without criticism, yet it remains entrenched within both domestic law and international concepts. Despite its flaws, the best interest principle remains necessary to observe, as without this doctrine, the interests of the child could easily be lost or not given due consideration. Moreover, it has been argued that while uncertainty and inconsistency can be the greatest weakness of the best interest principle, they can also be its greatest strength, as they provide the flexibility required to deal with individual facts and concerns of the child involved.45 Despite the criticisms associated with the application of the best interest principle by the Supreme Court, its approach remains superior in lightofthe one taken by the ECtHR,and allows this principle to continue to retain significant value. This is because it classes this principle as paramount,regardingallotherconsiderationsassubsidiary. Ashiftintheattitude of the ECtHR has been noticed, at least in adoption cases. This is to be regarded asa welcome change asthe vulnerability ofchildren requiresthatthe bestinterest principlebegivenprominenceforservingas`oneofthefewunquestionablemoral
42 In Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, para 33 (Hale LJ). 43 YC, above n 30, para 35. 44 See C Simmonds `Paramountcy and the ECHR: a conflict resolved?' (2012) 71(3) CLJ 498. 45 G Douglas `Comment: Co v Co' (2004) 34 Family Law 406, 410. Protecting the Interests of the Child 85 assertions'46 that exists in society today. Whether parents are separating from each other or adopting a child, the welfare principle sends a powerful message: `forget about your own rights; put the interests of your children first'.47
46 J Ribbens McCarthy, R Edwards & V Gillies, Making Families: Moral Tales of Parenting and Step-Parenting (2003) 140. 47 Herring, above n 11, 434. DOI: 10.7574/cjicl.02.01.82 Cambridge Journal of International and Comparative Law (2)1: 86–95 (2013)
Criminal Law, Evidence and Procedure
Tatyana Eatwell Christopher Sargeant
1 Introduction
As in the previous legal year,1 2011-12 has seen two themes dominate the criminal jurisprudence of the Supreme Court. Most importantly, in Ambrose v Harris,2 HM Advocate v P,3 McGowan v B4 and Jude v HM Advocate,5 the Supreme Court has been called upon to clarify various aspects of its controversial recent decision in Cadderv HM Advocate.6 Secondly, in R v Gnango,7 ithasbeen required to elucidate the law on joint enterprise responsibility and, at least implicitly, to confront the age-old question of how far public policy arguments should overtake the need for strict legal rules when determining an appropriate legal response in this area.
2 Explaining Cadder
In the 2010 case of Cadder, the Supreme Court unanimously followed the approach of the European Court of Human Rights in Salduz v Turkey,8 and held that, absent compelling reasons, denying an accused person access to a solicitor whilst he was detained by the police violated his rights under Articles 6(1) and
1 See Z Prodromou & S Wilson, `Criminal evidence and procedure' (2012) 1(2) CJICL 66. 2 [2011] UKSC 43. The full title of the case is Ambrose v Harris; HM Advocate v G; HM Advocate v M. 3 [2011] UKSC 44. 4 [2011] UKSC 54. 5 [2011] UKSC 55. The full title of the case is Jude v HM Advocate; Hodgson v HM Advocate; Birnie v HM Advocate. 6 [2010] UKSC 43. 7 [2011] UKSC 59. 8 (2009) 49 EHRR 19.
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6(3)(c) of the European Convention on Human Rights (ECHR).9 In doing so, the Supreme Court overruled a series of recent unanimous decisions of the Scottish High Court of Justiciary (particularly Paton v Ritchie,10 Dickson v HM Advocate11 and HM Advocate v McLean12); rendered at least thirty years of past practice unlawful;13 and caused a serious diplomatic rift between itself and the Scottish Government.14 Notwithstanding that this decision directly resulted in over one thousand cases being dropped,15 and drew an immediate legislative response from the Scottish Parliament,16 Cadder in fact left various questions as to its ambit unanswered. A selection of these issues have since visited the Supreme Court for clarification in the last judicial year. In its responses, the Supreme Court has arguably limited the remit of Cadder in both physical and temporal scope, and likely reined back its future impact.
2.1 Adverse admissions obtained prior to arrival at an authorised detention centre The first clarification sought from the Supreme Court concerned whether the rule in Cadder applied to adverse admissions obtained during police interroga- tion, but prior to the arrival of a suspect at an authorised detention facility. In Ambrose, a four to one majority of the Supreme Court (Lord Kerr dissenting) held that it did not. In the view of the Court, the rule only applied to interrogations conducted in a formal custodial institution. In M therefore, where the suspect was questioned at his own home as a witness (before his involvement as an of- fender was suspected) the rule in Cadder did not automatically prevent reliance upon his admissions. The matter was accordingly remitted to the High Court of Justiciary. A more complicated situation arose in G, a case in which the appellant was questioned in his flat whilst handcuffed (seemingly after having been arrested for another offence). Here, the Supreme Court held (rightly, it is submitted,
9 Convention fortheProtection ofHuman Rightsand FundamentalFreedoms, 4 November1950, 213 UNTS 221. 10 2000 SLT 239. 11 2001 SLT 674. 12 2010 SLT 73. 13 See e.g. Cadder, above n 6, para 4 (Lord Hope). 14 See Prodromou & Wilson, above n 1, 67 for general discussion. 15 R White & P Ferguson, `Sins of the father? The ``sons of Cadder''', (2012) 5 Crim LR 357, 357. 16 Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. 88 Tatyana Eatwell and Christopher Sargeant since the only factual difference was physical location) that this was akin to being in custody. In the view of Lord Hope, the act of handcuffing represented a `significant curtailment of his freedom of action'.17 The rule in Cadder was therefore engaged.
2.2 Adverse admissions obtained after the right to legal advice has been waived The second clarification sought concerned whether the rule in Cadder applied where an accused was in fact offered legal advice, but waived that right without taking separate legal advice as to whether to do so. In McGowan, the Supreme Court once more held that it did not (Lord Kerr again dissenting in part).18 At the same time however, the majority noted that any waiver must be `voluntary, informed and unequivocal'.19 They added that the test for this would be particularly stringent where the accused was considered vulnerable.20 The interpretation of this ruling was shortly thereafter considered in Birnie, a case in which the accused was eighteen years old and had just been informed that he was to be detained for the weekend. In such circumstances, Lord Kerr thought it `inescapable that his decision to [waive his right to counsel] could not in any circumstance be regarded as an effective waiver of his right'.21
2.3 Evidence obtained as a result of adverse admissions—the fruit of the poisoned tree? The third and final clarification sought from the Supreme Court concerned whether evidence obtained as a result of adverse admissions from interrogations which violated the rule in Cadder should itself be automatically excluded under the `fruit of the poisoned tree' rule. In P, the Supreme Court held that this was a matter upon which neither Salduz nor Strasbourg jurisprudence more generally provided guidance; indeed the Strasbourg Court had purposefully declined to do so.22 Accordingly, the Supreme Court could again only remit the matter to the High Court of Justiciary.
17 See G, above n 2, para 45 (Lord Hope discussing Zaichenko v Russia [2010] ECHR 185, para 48). 18 Cf above n 5, para 32 (Lord Justice-Clerk Gill). 19 See McGowan, above n 4, para 17 (Lord Hope, approving Millar v Dickson [2001] UKPC D4, para 31 (Lord Bingham)). 20 Ibid, para 35 (Lord Hope). 21 Above n 5, para 56 (Lord Kerr). 22 See e.g. Gäfgen v Germany (2011) 52 EHRR 1, para 162. Criminal Law, Evidence and Procedure 89
2.4 Overarching trends—conciliation, deference and the rise of constitutionalism Three overarching trends can be discerned from these decisions. The first is the more conciliatory tone adopted by the Supreme Court in its approach to Scottish criminal law. In part, this is achieved by clear and continuous restatement of its own jurisdiction. In Ambrose for example, Lord Hope was quick to note that the role of the Supreme Court was limited to engaging in a `consideration of the devolution issue which is raised'.23 The High Court of Justiciary, by contrast, remained `the court of last resort in all criminal matters in Scotland'.24 This contrasts with the view expressed by First Minister Alex Salmond in the wake of Cadder that the Supreme Court was interfering in Scottish criminal law,25 a jurisdiction denied to it by the Act of Union.26 Nonetheless, the Supreme Court has also gone beyond merely clarifying its own procedural role and has narrowed the application of the rule in Cadder as a matter of substance. Although its basic premises now extend geographically to custody both de jure and de facto, it has not been given universal application to any interaction with the police. Further, the right can be waived without the need for separate legal advice and evidence obtained from any unlawful admissions is not itself automatically excluded, rulings which are clearly open to future abuse. It is likely, then, that Cadder will have a much more limited future impact thanmightpreviouslyhavebeenthought. AsFergusonandWhitehavenoted, the current position allows for `a restoration to as close to the pre-Cadder position as is now possible, if the High Court chooses to so decide'.27 Given that the result in Cadder was opposed by the Scottish Government, Parliament and judges (who had themselves refused both the initial application and the original attempt to appeal the decision to the Supreme Court), an opportunity to limit its scope is one they can be expected to take without disappointment. The second overarching trend is the continuing restrictive approach of the Supreme Court to judgments of the European Court of Human Rights. In this regard, the Human Rights Act 1998 does not bind domestic courts to apply judgments of the Strasbourg Court per se, only requiring that they are taken
23 Above n 2, para 14 (Lord Hope). 24 Ibid. 25 See e.g. R Dinwoodie, `Salmond: Scotland's legal system is being undermined' The Her- ald (Scotland), 27 October 2010
[I]t is not open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken […] It is therefore the duty of this and every court […] to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view.33
The third trend, underpinned by the issues outlined above, is the ongoing evolution of the Supreme Court into a UK Constitutional Court. This change has been driven by the increasing numbers of cases calling upon the Supreme Court to exercise a form of constitutional review, either de jure over laws from devolved institutions, or de facto overActsoftheUKParliament. Atleastata prima facie level, the Supreme Court is increasingly challenging many of the established assumptions of the UK constitutional arrangement and gradually rewriting its place within it. That this evolution is occurring can be seen from the ever increasing number of cases raising issues surrounding the compatibility of domestic law with the ECHR and EU law,34 and with the division of powers under the devolution settlements.35 Also of particular note are the recent decisions in R (Jackson)
28 Human Rights Act 1998 s 2. 29 [2004] UKHL 26. 30 Ibid, para 20 (Lord Bingham); see also Cadder, above n 6, para 51 (Lord Hope). 31 See e.g. R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, para 106 (Lord Brown). 32 Ambrose, above n 2, para 20 (Lord Hope). 33 Ibid, paras 128-130. 34 R v Secretary of State for Transport; ex parte Factortame Ltd (No 2) [1991] 1 AC 603. 35 Re Local Government Byelaws (Wales) Bill 2012 [2012] UKSC 53. Criminal Law, Evidence and Procedure 91 v Attorney General36 and AXA General Insurance Ltd v HM Advocate37 on the relationship between Acts of Parliament (both at the UK and devolved levels) and common law. These decisions may well form the basis of a direct challenge to sovereignty of Parliament in the future, but for now at least show the ongoing empowerment of the Supreme Court in opposition to the other institutions of State. Although it is beyond the scope of this work to consider this transformation of the UK constitutional system in any detail, this is a development worthy of particular note. This is especially so given predictions by many commentators and even some judges that the replacement of the judicial function of the House of Lords with a Supreme Court would have little practical effect.38 Although this shifthas been happening for some time, it is clearly one which has been enhanced (at least implicitly) by the physical move of the Court across Parliament Square to the Guildhall.
3 Joint enterprise—policy at the expense of legal clarity?
Joint enterprise has been a source of concern in recent years, particularly when used in the prosecution of murder.39 Attempts by the courts to define the scope of joint enterprise have come under criticism for allowing public policy to become too intertwined with the legal principle.40 It has been argued that the dominance of policy considerations, particularly directed towards deterring gang-related violence, has led to an overly complex catch-all doctrine that can
36 [2005] UKHL 56. 37 [2011] UKSC 46. 38 See e.g. D Neuberger, `The Supreme Court: is the House of Lords ``losing part of itself''?', The Young Legal Group of the British Friends of the Hebrew University Lecture, 2 Decem- ber 2009
What public policy requires was rightly identified in the submis- sionsfortheCrown. Whereamanlendshimselftoacriminalenter- priseknowingthatpotentiallymurderousweaponsaretobecarried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences by re- liance upon a nuance of prior assessment, only too likely to have been optimistic.44
It is evident from the judgment in Gnango that policy lay behind the lines of reasoning mooted in support of the restoration of the conviction of the intended victim of a fatal gunshot. As Lord Brown said, `[t]he general public would in my opinion be astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot'.45 Contrary to this observation, the authors have found no evidence of publicoutragefollowing theCourtofAppeal'sdecision to quash theconviction.46
41 Moloney & Natas, above n 39; M George, `Long on policy, short on principle', The Justice Gap
Further, it ought to be remembered that had the Supreme Court found in favour of Gnango, he would not have got away scot-free. He had also been convicted of attempted murder and possession of a firearm with intent to endanger life, receiving a sentence of imprisonment of at least fifteen years. Given the facts of the case, the concern with policy is understandable. Gnango, a 17-year-old boy, had been in a shoot-out with another, referred to as `Bandana Man' (B).47 During the course of the shoot-out, a passer-by, Ms Pniewska, was killed by a stray bullet. The facts are horrendous. Nevertheless it is important to note that it was not in dispute that B was the first to fire and that B had fired thelethalshot. Had hebeen prosecuted, allwereagreed thathewould have been found guilty of murder by reason of transferred malice. The elephant in the room is the fact that to date B has not been prosecuted. It is submitted that in B's absence, the securing of a conviction for Ms Pniewska's murder has been at the cost of legal precision. The facts of the case are straightforward, but the reasoning of the Supreme Court is convoluted and does little to clarify the law. This is explored further in this volume by Findlay Stark in ```A most difficult case'': on the ratio of Gnango'. As Lord Kerr said in his dissenting judgment, `[v]arious bases on which Gnango might—or should—be found guilty of the murder of Ms Pniewska have been canvassed in the course of argument and in the judgments of other members of the court'.48 The majority agreed that Gnango's murder conviction should be restored, but were divided on the reasoning as to why.49 With unanimity, the Supreme Court agreed with the Court of Appeal that the jury could not properly have convicted on the basis of `parasitic accessory liability'—whether, having agreed to commit an affray and in the course of committing the affray, B went beyond what was agreed, by causing serious injury with intent, and Gnango foresaw that risk that B would do so. Despite observing that it would be `undesirable [...] if a practice developed of relying on the doctrine of parasitic accessory liability to charge with murder parties to an affray who had not themselves intended that it would result in serious injury',50 the Supreme Court did so without clarifying the scope of this principle, leaving the waters ever muddied. As Ormerod has observed, `this has serious implications, and it is
47 Gnango, above n 7, para 7. The man was described as wearing a red bandana that covered his face. 48 Ibid, para 110 (Lord Kerr). 49 This did not worry Lords Phillips and Judge who felt that the differences were not substantial. See para 62. 50 Gnango, above n 7, para 41 (Lords Phillips and Judge). 94 Tatyana Eatwell and Christopher Sargeant unclear why it is limited to affray'.51 Further evidence of policy overshadowing legal precision lies in the fact that the jury was directed to consider only parasitic accessory liability and not some other form of secondary liability. The issue of whether or not Gnango encouraged or aided and abetted B to shoot at him and intended to do so was not left to the jury. This approach, rejected by the trial judge, was advocated in the leading judgment of Lords Phillips and Judge (Lords Wilson and Dyson agreeing). It is questionable, however, whether the Supreme Court could determine that Gnango was properly convicted on that basis. As Lord Kerr said in his dissenting judgment:
In the absence of a specific direction on Gnango's intention to encourage B to shoot at him, I do not consider that the verdict of the jury can be upheld on the basis that it was founded on their conclusion that he either had the requisite intention or that the virtually certain result of his firing at B was that he would return fire and that Gnango knew that this was virtually certain to occur.52
It is regrettable that Gnango did not gainsay the conclusions of the Justice Committee's inquiry that `[t]he lack of clarity over the common law doctrine on joint enterprise is unacceptable for such an important aspect of the criminal law'.53 Gnango may have achieved a certain kind of justice for the tragic death of Ms Pniewska, but there remains generally a growing sense that the application of the law generally has led to injustice.54 Attempts to define the scope of joint enterprise have undoubtedly caused a great deal of confusion and contributed to the increasing complexity of the doctrine.55 In practice, joint enterprise is deployed to cover a variety of different acts committed by secondary parties, from encouragement through presence56 to directparticipationinthefatalact. Assuch,evenincasesofspontaneousviolence, the scope of joint enterprise `can be drawn so wide that those who would appear
51 D Ormerod, `Worth the wait?' [2012] Crim LR 79, 80. 52 Gnango, above n 7, para 125 (Lord Kerr). 53 House of Commons Justice Committee Report, Joint Enterprise, Eleventh Report of Ses- sion 2010-12, 17 January 2012, HC 1597, 18
4 Conclusion
Given the controversy that Cadder and Gnango have caused, the issues raised are likelytobeseenagainintheSupremeCourtinthenearfuture. Thisisparticularly true in respect of Cadder, given that the constitutional arrangement of the United Kingdom and its relationship with the European Court of Human Rights continues to feature prominently in wider legal debate. The full implications of Gnango are also yet to be seen. However, it can be expected that the courts will hear substantial legal argument concerning its application to other, perhaps less unusual, circumstances. Once again, we must wait to see how both cases develop in the coming months. The 2012-13 review is awaited with interest.
57 Moloney & Natas, above n 39, para 24. 58 KClarke,`Jointenterprise: governmentresponsetotheCommittee'sEleventhReportofSession 2010-12—Justice Committee', 13 March 2012, HC 1901, 3
Demetrio Maltese Rowan Nicholson
1 Introduction
Reagan's quip that it `takes two to tango'1 might seem an apt description of the relationship between the United Kingdom Supreme Court (UKSC) and the Court of Justice of the European Union (CJEU). But although the two courts are certainly doing the same dance, whether they are doing it to the same tune is not always clear. This has been illustrated by a number of cases in the 2011-12 judicial year. In the cases discussed in this article, the UKSC set out to achieve the straightforward result required of it: to give effect to directly applicable EU law and interpret domestic law so far as possible consistently with EU law. Two cases relating to intellectual property, including one in which the UKSC deferred to the formally non-binding decision of the European Patent Office (EPO), provide strikingexamplesoftheimportanceandeffectivenessofharmonisinglawswithin the EU and of the openness of the UKSC to EU influence. They illustrate the extent to which applying EU law in the UK has become a smooth process based on a dialogue between the two systems. But another recent case, Assange v The Swedish Prosecution Authority,2 which concerned an entirely different area of EU law, casts some doubt on this conclusion. Although the UKSC similarly acknowledged the need for harmony across the two systems, it made the perhaps surprising observation that EU framework decisions are not binding on it, and in some respects departed from the CJEU's approach.
1 R Reagan, `Transcript of President's news conference on foreign and domestic affairs', New York Times, 12 November 1982, B6. 2 [2012] UKSC 22.
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2 Human Genome Sciences and Sun Microsystems
Harmonisation has been of particular importance, at least in recent times, in the realm of intellectual property and patent regulation. Patent law has always tried to balance two different goals. On the one hand, insofar as it protects a scientist's discoverythroughrightsofattribution, itaimstosafeguardresearchers'creativity and their incentive to advance scientific knowledge. On the other, by granting entrepreneurs the right to take commercial advantage of scientific discoveries, patent law aims to foster investment in research and development. Given how fundamental these goals are to the functioning of the UK and EU economies, it is essential that the law in this area is as clear, consistent and certain as possible. Patent law and its applications also involve, by their very nature, supra- national rules that attempt to harmonise and make coherent the applicable law in different legal systems. As Minssen and Nilsson note, the EU:
[...] is driving an effort to harmonise patent law within the EU, most notably through the recent European Council's Conclusions reached on June 29, 2012, which embraces both the unitary patent system and the unified patent litigation scheme and thus represents a milestone in the lengthy and tortuous chapter on the European patent deal.3
It was in pursuit of such harmonisation that the UKSC reached its decision in Human Genome Sciences Inc v Eli Lilly and Company Limited,4 in which it considered whether a patent granted for a protein lacked industrial application under Article 57 of the European Patent Convention,5 and whether national courts could deviate from EPO decisions. The UKSC dismissed the rulings of the lower courts on the ground that they did not give proper weight to the principles of plausibility to be considered in applying Article 57. In particular, `the CourtofAppealdid notapproach theconceptofplausibilityconsistentlywith the
3 T Minssen & D Nilsson, `The industrial application requirement for biotech inventions in light of recent EPO and UK case law: a plausible approach or a mere ``hunting license''?' (2012) 34 EIPR 689, 691. 4 [2011] UKSC 51. 5 Convention on the Grant of European Patents, 5 October 1973, 1065 UNTS 199. The EPO grants patents according to this Treaty, which is currently in force in 38 countries. A new text of the TreatywasadoptedbytheAdministrativeCounciloftheEPO bydecisionof28June2001: [2001] OJ EPO, Special edition No 4, 55. 98 Demetrio Maltese and Rowan Nicholson jurisprudence of the Board [of the EPO]'.6 This decision was groundbreaking, not least because `in the absence of sufficient UK precedent the UKSC has now based its judgment on the formally non-binding decisional practice from the EPO'.7 Another case decided by the UKSC in its Trinity Term of 2012 related tangentially to intellectual property—the exclusive selling rights arising from the detention of a trade mark—is Oracle America Inc (Formerly Sun Microsystems Inc) v M-Tech Data Limited.8 The action was brought by Sun Microsystems (Sun) for infringement by M-Tech of its right to control the first marketing of goods bearing its trademarks on the EEA market. The case is significant insofar as it exemplifies how different the application of EU law can be at different levels of the UK court hierarchy. The UKSC allowed the appeal against the decision of the Court of Appeal and restored the original order of Kitchin J. Kitchin J had held that there was no real prospect of successfully defending the case on any of the grounds on which M-Tech sought to defend its position and therefore granted summary judgment for Sun. In fact, as per Kitchin J, M-Tech's submission that `the enforcement of Sun's exclusive rights in its registered trade marks is contrary to Articles 28 to 30 [of the] EC [Treaty] as its object and effect is to prevent the attainment of a single market in Sun hardware', was not admissible—even if unreasonable on factual grounds—because:
[...] theanswertothesubmissionliesintheDirectiveandRegulation as interpreted by the ECJ [now CJEU]. As the Court explained in Davidoff, these embody a complete harmonisation of the rules relating to the rights conferred by a registered trade mark. More specifically, Articles 5 to 7 [of the Trade Mark Directive9] contain the rules laid down by the Community legislature as to the scope of the concept of Community exhaustion.10
The Court of Appeal reversed this decision, finding, among other things, that there was a real prospect of establishing that Articles 5 and 7 of the Trade Mark Directive had to be interpreted by reference to Articles 28-30 of the EC Treaty.
6 Above n 4, para 122 (Lord Neuberger). 7 Minssen & Nilsson, above n 3, 702. 8 [2012] UKSC 27 on appeal from [2010] EWCA Civ 997. 9 FirstCouncilDirective89/104/EECof21December1988toapproximatethelawsofthemember states relating to trade marks [1989] OJ L 40/1. 10 Sun Microsystems Inc v M-Tech Data Limited [2009] EWHC 2992 (Pat), paras 33-34 (Kitchin J). European Dimensions 99
Moreover, Arden LJ suggested that if M-Tech's allegations were established, there would be a `strong case for a reference'11 to the CJEU,given the lack of clarity and thefactthattheissuesinvolvequestionsofeconomicpolicylikelytoaffectEurope as a whole. The results turned on the divergent approaches of the two courts to CJEU case law.12 On appeal, the UKSC held, first, that there was no need to refer the case to the CJEU. Secondly, it found that the right of a trade mark proprietor to control the first marketing of goods in the EEA in accordance with Articles 5 and 7(1) of Directive 89/104 is not hampered by the provisions of the Treaty on the Functioning of the European Union13 regarding the free movement of goods (namely, Articles 34, 36 and 101) and that M-Tech did not have a good defence. Lundie-Smith suggests that this judgment reduced the scope for the `raising of Euro competition defences in intellectual property actions, particularly where such defences require the input of the CJEU, [which] can be an excellent way for a would-be infringer to push a case off into the long grass'.14 Nevertheless, it is an example of how the UKSC exercises autonomy in deciding delicate issues in accordance with EU legislation.
3 Assange
At first glance, Assange v The Swedish Prosecution Authority15 might appear to offer few insights into the relationship between the jurisprudence of the UKSC and that of the CJEU. The UKSC was faced with two questions—the meaning of `judicial authority' in a framework decision by the Council of the EU,16 and the meaningofthesameterminaUKstatutegivingeffecttothatdecision. TheUKSC followed an approach seemingly conducive to fostering consistency with EU law: that in both instances, the term encompassed a public prosecutor. In fact, the implications of Assange for the relationship between the courts, though perhaps overshadowed by the more dramatic aspects of the case, are more complex. This is for two reasons.
11 Oracle America Inc v M-Tech Data Ltd & Anor [2010] EWCA Civ 997, para 42 (Arden LJ). 12 Cf R Lundie-Smith, `Right to first market within the EEA is unfettered by freedom of movement of goods' (2012) 18 CTLR 248. 13 [2010] OJ C 83/47. 14 Lundie-Smith, above n 12, 253. 15 [2012] UKSC 22. 16 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, [2002] OJ L 190/1. 100 Demetrio Maltese and Rowan Nicholson
First, it is true that the majority of the UKSC held that, at least in the relevant respect, theterm `judicialauthority'had the same meaning in both theframework decision and the Extradition Act 2003. But it did not hold that this result was compelled by EU law. Framework decisions were legislative acts by the Council of the EU within the third EU pillar (at the time of the decision in question, Justice and Home Affairs). Until their recent abolition, the Treaty on European Union provided that framework decisions were binding as to the result to be achieved, but left the choice of form and method to member states and did not entail direct effect.17 In Criminal proceedings against Pupino,18 the CJEU held that `[w]hen applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the frameworkdecisioninordertoattaintheresultwhichitpursues'.19 Yet in Assange, Lord Mance held (and the majority agreed)notonly thatframework decisions fell outside the scope of European Communities Act 1972 section 2 (which gives EU laws domestic effect), but also that the dictum from Pupino fell outside section 3, which renders CJEU decisions binding.20 This was because section 3 `regulates the manner in which and principles by which European law is to be given effect, not the extent to which European law applies' and therefore had no relevance to decisions outside the scope of section 2.21 The basis on which the majority held that the term `judicial authority' had the same meaning in both the framework decision and the UK statute was the rule of statutory interpretation that when Parliament legislates to give effect to an international legal obligation, it is presumed to do so in full. It had regard to the objective of the framework decision `to create a single uniform system', which could only be achieved if all member states gave the term the same meaning.22 Lord Brown noted that the majority's approach would `produce the same result' as Pupino,23 and here it did. But it also raised a possibility to which Lord Brown averts: that such a term could `be given a different and narrower meaning than it bears in the framework decision if it were absolutely plain that Parliament had intended to legislate inconsistently with the United Kingdom's international
17 Previously: Treaty on European Union [2006] OJ C 321 E/5, Art 34(2)(b). This provision no longer exists in the current version of the treaty: [2010] OJ C 83/13. 18 Case C-105/03, [2005] ECR I-5285. 19 Ibid, para 43. 20 Above n 15, para 212 (Lord Mance). 21 Ibid, para 10 (Lord Phillips). 22 Ibid, para 98. 23 Ibid. European Dimensions 101 obligations' (though those were the only circumstances in which it could be given such a different meaning).24 Slim though thelikelihood ofsuch adivergencefrom EU law may be, the recognition in Assange that certain EU decisions are in fact not binding in domestic law is significant. Secondly, itisalso truethatthemajority—despiteacertain reluctanceevident from the judgments25 and consistent with the apparent assumption from UK practice that the term would exclude public prosecutors—accepted a definition of `judicial authority' that encompassed the diversity of judicial practices in EU member states. But it did so in a way that conflicted with the approach of the CJEU: by relying on the Vienna Convention on the Law of Treaties (VCLT).26 MilesandPajustehaveanalysedindetailwheretheUKSCwentastray.27 First, the VCLT simply did not apply because the framework decision, like other secondary EU Acts, is not a treaty. This error is surprising given that Lord Mance expressly noted and the majority accepted that it fell outside the definition of `the Treaties' in European Communities Act 1972 section 1. Secondly, and more importantly for EU law, the CJEU itself has never applied the VCLT to secondary EU Acts; instead it applies a similar EU rule of interpretation to which the UKSC did not refer. Nor does the CJEU ever have regard to subsequent practice in interpreting treaty texts, yet the UKSC purported to rely on such practice extensively in determining the meaning of `judicial authority'. In France v Commission, the CJEU commented that `a mere practice cannot override the provisions of the [EC] Treaty'.28 In other words: although the UKSC reached a conclusion that might seem conducive to consistency with EU law, in fact it departed from the CJEU's own approach (the further question of whether the UK judgment is consistent with international law is outside the scope of this article, but is considered in this volumebyKrishnaKakkaiyadiandCallistaHarrisin`Treatyinterpretationbefore the Supreme Court').
24 Ibid, para 99. 25 See e.g. ibid, para 98, where Lord Brown described it as `regrettable' that UK ministers had been mistaken about the scope of the term in the framework decision. 26 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. 27 T Pajuste, `Assange v Swedish Prosecution Authority: the (mis)application of European and international law by the UK Supreme Court—Part I', CJICL Blog, 20 June 2012,
So Assange is not a sign that applying EU law in the UK has become a smooth or mundane process. The UKSC's recognition of a limit on the scope of the European Communities Act 1972, though perhaps surprising, is firmly grounded in statutory interpretation. Its departure from the CJEU's approach to interpretation is not. In both respects, Assange illustrates the continuing need fordialogue between the two jurisdictionsand forattentivenessin the application of EU law.
4 Conclusion
In summary, the jurisprudence for the legal year 2011-12 paints a mixed picture of the relationship between the UKSC and the CJEU. Together, the cases suggest that, although the application of EU law by UK courts is often straightforward, there are still discoveries to be made about the relationship between the two systems and tensions to be resolved. Only time will tell how these tensions may be eased. DOI: 10.7574/cjicl.02.01.84 Cambridge Journal of International and Comparative Law (2)1: 103–112 (2013)
Social Welfare
Ielyzaveta Badanova Ann Sofie Cloots
1 Introduction
The balance between the rights of individuals and the interests of `others' (represented by either a protected group or the country as a whole) is a landmark strand in most debates surrounding matters of social welfare. In this article, we outline the multi-dimensionality of the balance issue as reflected in the jurisprudence of the Supreme Court (UKSC) for the legal year 2011-12.
2 Balancing interests of different groups
Adherence of an individual to a particular group is usually a prerequisite for entitlements attached by the state. Such adherence may be automatic (in case of race, nationality, age, etc) or situational. In the latter case, there exists a margin of appreciation as to the person's belonging to a particular group. Given complex societal relations, interests of protected groups can intersect and place these groups in a difficult position. In this year's age discrimination cases (Seldon v Clarkson Wright and Jakes1 and Homer v Chief Constable of West Yorkshire Police2)theUKSCwascalledupontobal- ance different age group interests. At the outset, the UKSC acknowledged that, in view of the EU legislation as transposed into domestic law, age discrimination can be justified on the grounds of `broader social and economic policy' objec- tives.3 At the same time, any policy involving age differentiation should be well scrutinised in terms of its legitimate purpose, appropriateness and proportion- ate effect.4 This position emanates from Court of Justice of the European Union (CJEU) jurisprudence, and can be contrasted with the approach taken in some
1 [2012] UKSC 16. 2 [2012] UKSC 15. 3 Above n 1, para 3 (Lady Hale). 4 Ibid, paras 35, 55, 62 (Lady Hale).
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 104 Ielyzaveta Badanova and Ann Sofie Cloots other common law jurisdictions.5 As follows from the CJEU case law, `sharing employment between the generations'6 would generally be regarded as a legit- imate policy objective.7 This usually means ensuring that the interests of the younger generation are better secured. However, the reality of age regulations is not entirely straightforward: cases are cited in Seldon where establishment of a mandatory retirement age was considered unjustified.8 In addition, the purpose of anti-discrimination regulation is to protect individuals from arbitrary action on impermissible grounds,9 rather than to establish a hierarchy of social group interests. The issue of individual stance came to the fore in Homer.10 In this case, Lady Hale, delivering the judgment (with Lord Mance dissenting on this point),11 hinted at the appropriateness of personal exceptions as a means of avoiding dis- crimination against representatives of one social group without encroaching on the rights of the other in the employment arena.12 A different dimension of comparison (that of similar circumstances) was at play in Hewage v Grampian Health Board,13 which also concerned discrimination in the workplace. In this case, the claimant (a woman of Asian descent) retired from her position on the board of a medical institution and argued unfair dismissal14 due to discrimination on the grounds of sex15 and race.16 The discrimination testrequired theUKSC to evaluatewhetheraperson ofadifferent
5 In the USA, rational basis review as applied in Massachusetts Board of Retirement v Murgia, 427 US 307 (1976) is usually resorted to in cases involving allegations of age discrimination. For the rational basis review, the measure in question should be reasonably connected to a legitimate policy objective. As a result, in contrast to higher standards of judicial scrutiny (strict and intermediate scrutiny), no detailed assessment in terms of proportionality of the measure is generally required. See N A Kohn, `Rethinking the constitutionality of age discrimination: a challenge to a decades-old consensus' (2010) 44 University of California Davis Law Review 213. This can be contrasted with the position of the CJEU, which recognises that, on the matter of age classifications, establishing a legitimate aim of the measure is not sufficient in itself (above n 1, para 35 (Lady Hale), citing Case C-88/08, David Hütter v Technische Universität Graz [2009] ECR I-5325). 6 Seldon, above n 1, para 42 (Lady Hale). 7 Ibid, paras 36, 44, 45 (Lady Hale). 8 Ibid, para 49 (Lady Hale). 9 Ibid, para 57 (Lady Hale). 10 Above n 2. 11 Ibid, paras 34-36 (Lord Mance). 12 Ibid, paras 16, 21, 26 (Lady Hale). 13 [2012] UKSC 37. 14 Employment Rights Act 1996 s 94(1). 15 Sex Discrimination Act 1975. 16 Race Relations Act 1976. Social Welfare 105 sex and race in the same circumstances would have been treated differently. This exercise was facilitated by the fact that the head of a different department of the same institution (a white male) had earlier received contrastingly better treatment from the same staff member. Lord Hope, delivering the judgment, argued that the two situations were not `precisely the same', though they were sufficiently comparable.17 The difference in attitude between the two instances was `astounding and inexplicable'.18 The claimant therefore succeeded in proving a prima facie case of discrimination as there appeared to be no reasonable explanation for the difference in conduct. The burden of proof was then shifted back to the respondent, who in this case failed to discharge it. The balance issue was again raised in Humphreys v The Commissioners for Her Majesty's Revenue and Customs.19 Here, divorced parents' entitlement to Child Tax Credits (CTC) formed the core question. As it stands now, CTC are only payabletooneoftheparents(themaincarer),evenwhenthechildspendsroughly equal time with both. This rule has been attacked in court at several instances, though so far unsuccessfully.20 The UKSC in Humphreys confirmed that this rule discriminates between majority and minority shared carers and happens to be indirectly discriminatory against fathers who are most often minority shared carers.21 Nevertheless, it held that this discrimination was justifiable.22 The UKSC applied European Court of Human Rights (ECtHR) case law23 to find that `the normally strict test' for justifying sex discrimination is replaced by the `manifestly without reasonable grounds' test where state benefits are at stake.24 This is in line with its earlier case law.25 The UKSC looked at the parliamentary discussions to assess whether it could find such reasonable grounds in this
17 Above n 13, para 22 (Lord Hope). 18 Ibid, para 23 (Lord Hope). 19 [2012] UKSC 18. 20 See e.g. R (Barber v Secretary of State for Work and Pensions [2002] EWHC Civ 1915 (Admin); M Cousins, Social Welfare Law (2002) 243 (n 14). 21 Above n 19, para 20 (Lady Hale). 22 Ibid, para 33 (Lady Hale). 23 The UKSC referred to Stec v United Kingdom (2006) 43 EHRR 1017, and other judgments of the ECtHR for its reasoning on the justification of discrimination. The UKSC held that it was unnecessary to assess to what extent the test in EU law is different from that applied by the ECtHR, as in this case, the Court of Appeal ruled that the EU test would not lead to a materially different outcome. 24 Above n 19, para 19 (Lady Hale). 25 See R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63; see also J Eames, `Human rights: discrimination—tax credits—children—separated parents—Humphreys v Revenue and Customs Commissioners', (2012) 19(3) Journal of Social Security Law 126, 128. 106 Ielyzaveta Badanova and Ann Sofie Cloots instance. These revealed that the decision not to provide for a mandatory split of CTC was a deliberate choice,26 held to (i) be in the best interests of the child; and (ii) provide administrative efficiency. The UKSC confirmed that it is up to the state to decide how to deliver support for children in the most effective manner and that a split of the allowance could be to the child's disadvantage.27 In sum, the UKSC acknowledged discrimination between parents, but found that it was justified by the best interests of the child. As the non-splitting policy `also happens to be a great deal simpler and less expensive to administer', it can only maximise the amount available for distribution.28 The UKSC acknowledged that it would `obviously be the more rational solution'29 to restore the power of the family court to order a split of CTC where it deems it appropriate. However, the UKSC didnotwanttoencroachuponthemarginofappreciationofthelegislator. It limited itself to the finding that the decision not to split CTC was a reasonable ruleforthestateto adoptand thattheindirectdiscrimination resulting therefrom was justified.30 This approach may be distinguished from that of the USA. The child allowances in the USA follow the general philosophy of US welfare policy, based on individual responsibility and very limited, means-tested benefits.31 In practice, this often means that it is harder for children to escape poverty.32 The UK system is premised on the same basic principles, though corrected by a more encompassing approach to fight poverty and exclusion.33 The CTC system has helped raise income levels substantially.34 In addition, disadvantaged children participate in the policy making process itself,35 which helps to better understand their needs. In Solihull Metropolitan Borough Council v Hickin,36 the UKSC was called upon to balance different interests at stake in a secured tenancy. Since the 1960s, social housing policy has tried to protect the ownership rights of landlords while
26 Above n 19, para 9 (Lady Hale). 27 Ibid, para 29 (Lady Hale). 28 Ibid. 29 Ibid, para 32 (Lady Hale). 30 Ibid, para 33 (Lady Hale). 31 P Hoelscher, `What works—preventing and reducing child poverty in Europe' (2006) 8 European Journal of Social Security 257, 270. 32 Ibid, 271. 33 Ibid; and G Biffl, `Diversity of welfare systems in the EU: a challenge to policy coordination' (2004) 6 European Journal of Social Security 36. 34 Hoelscher, above n 31, 271. 35 Ibid. 36 [2012] UKSC 39. Social Welfare 107 softening their control over the tenancy.37 Under the Thatcher regime, the concept of secure tenancy was introduced.38 The current Housing Act 1985 aims to protect both the interests of secured tenants and those of landlords. Lord Sumption, delivering the judgment, refused to interpret the Housing Act in such a way as to disregard this legislative balance. In this case, it meant that the daughter of a deceased secure tenant could not succeed to the secured tenancy, whilethehusbandofthedeceased,wholeftthefamily(andthefamilyhome)years before, could still benefit from it. Lord Sumption argued that however `arbitrary, even capricious' it may seem to defeat the daughter's claim, `equally arbitrary and capricious consequences follow from any alternative construction'.39 This conclusion was, however, controversial, as is reflected by the internal division of the UKSC.40 In sum, the UKSC continues to refine its attempt to find a just and workable equilibrium between general principles underlying social welfare policy on the one hand, and tangible personal protection against the sometimes unjust outcomes of such general rules, on the other. It appears that the UKSC tends to favour workable general principles, sometimes at the expense of individual cases. This, however, does not restrain the UKSC from implicitly pronouncing on the value of personal exceptions where particular circumstances deem it fit (e.g. in Homer).
3 Balancing individuals' claims and the interests of society at large
Competing claims of individuals as opposed to those of the wider society can be vividly observed in the example of Secretary of State for Work and Pensions v Payne and another,41 and, more broadly, in the on-going discussion on recoverability of benefit overpayments. In this particular case, the Secretary of State for Work and Pensions (DWP) actedinitstwo-foldcapacity—asacreditor,ontheoneside,andasasocialwelfare agent, on the other. The DWP wanted to recover a debt (which it, in turn, owed to other beneficiaries) by deducting it from current benefits. The DWP carried
37 D Hughes & S Lowe, Social Housing Law and Policy (1995) 162. 38 Ibid. 39 Above n 36, para 15 (Lord Sumption). 40 Ibid, paras 58-63 (Lord Clarke). 41 [2011] UKSC 60. 108 Ielyzaveta Badanova and Ann Sofie Cloots out an `adjustment of the amount of benefits' due to the respondents based on the `net entitlement' principle.42 At the end of the day, others in need depended on the resources trapped in the respondents' hands. This claim was opposed by the respondents, severely indebted holders of a Debt Relief Order (DRO). They relied explicitly on the `natural meaning of “remedy”'43 as including powers of deduction exercised by the DWP and as prohibited during the moratorium period. In a less straightforward manner, their claims were premised on the universal entitlement to individual benefit payments. LadyHaleacknowledgedthereasonbehindthisimplicitargumentand sympathised with the respondents by rejecting the `net entitlement' concept.44 She affirmed that statutory entitlement to any benefit exists in parallel to repayment liabilities of a person.45 Thus, the DWP is, in effect, left without any self-help mechanisms in respect of DRO holders. To arrive at an opposite conclusion would, according to Lord Brown, only be possible upon `torturing the statutory language'.46 Lord Brown rightly predicted that the established superiority of the DRO holders' claims would not survive government scrutiny, as evidenced by the amendments to the Insolvency Rules, which were introduced soon after the judgment (though not fully helpful to the DWP's case).47 The case also involved societal claims. These `notional' claims were not voiced in the proceedings. Nevertheless, they were attached to the respondents' status as DRO holders. This status permits them to claim their entitlement to corrective action of the DRO as an instrument for those `who are too poor to go bankrupt'.48 By virtue of the DRO, the government effectively intrudes in the market-driven resource distribution by wiping out accumulated `qualifying debts' of a DRO holder. Importantly, the UKSC aligned with the government (and the respondents) and supported these claims by upholding the judgment in Balding.49 Implicit in Payne is the recognition that public welfare resources are not unlimited. In2010,aroundonethirdofpublicspendingintheUKwenttowelfare
42 Ibid, para 19 (Lady Hale). 43 Ibid, para 20 (Lady Hale). 44 Ibid, para 21 (Lady Hale). 45 The question yet remains as to the lawfulness of recoupment for account of benefits of the same kind as those previously overpaid. Lady Hale seems to have left this window open. 46 Payne, above n 41, para 28 (Lord Brown). 47 D Milman, `Debt relief orders: mixed messages from the courts and policymakers' (2012) Insolvency Intelligence 104, 105. 48 Above n 41, para 7 (Lady Hale). 49 Ibid, para 26 (Lady Hale). Social Welfare 109 benefits, according to the Chancellor of the Exchequer.50 This is only slightly less than what Scandinavian countries and countries following the continental European model spent on state-run benefits, though poverty and social exclusion in the UK are more pronounced.51 The practical implications of the reasoning on limited resources in Payne were made more explicit in Humphreys52 and R (on the application of KM) v Cambridgeshire County Council.53 In Humphreys, the UKSC acknowledged that the current no-split CTC policy `happens to be a great deal simpler and less expensive to administer'.54 The UKSC took this factor into account to justify the discriminatory effect of the CTC system, noting that the alternative system would result in additional costs associated with the correct allocation of benefits based on each parent's means. In RvCambridgeshire,aseriouslydisabledmanchallengedthespecificamount of entitlements he received from the local authority based on the Chronically Sick and Disabled Persons Act 1970. The core question was whether it was `necessary, in order to meet the needs of that person for the authority to make arrangements for' any of the services listed in the Act. This case has allowed the UKSC to clarify the House of Lords' confusing judgment in Barry.55 The latter case indicated that limited resources could be taken into account when evaluating the entitlements under the 1970 Act, though it remained unclear how this would be done. The economic crisis and the consequent cuts in government budgets make it likely that more cases challenging the allocation of scarce resources will find their way to into the courts, rendering clarity on this question even more important.56 In R v Cambridgeshire, the UKSC allowed the finite resources of the authority to be weighed when assessing the issue in dispute. In other words, it considered 'the relationship between the scale of the local authority's resources and the burden of other demands upon it'.57 If the local authority is under a duty to provide a certain service to the disabled person, but cannot provide those
50 N Watt, `Spending review: welfare bears the brunt as extra £7bn of cuts unveiled' The Guardian, 20 October 2010,
4 State as a custodian
In the context of social welfare, the state usually acts as a custodian of a common interest in protecting the most vulnerable. In doing so, it primarily engages in regulation of the most sensitive areas of legal relations. As part of the custodian function, the state may also assume positive obligations to take preventive action in particular circumstances. For instance, under Article 2 of the European Convention on Human Rights (ECHR),62 the UK owes an `operational duty' to persons under its jurisdiction and control, which
58 Ibid, para 22 (Lord Wilson). 59 Ibid, paras 24-28 (Lord Wilson). 60 Ibid, para 38 (Lord Wilson). 61 Ibid, para 36 (Lord Wilson). 62 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221. Social Welfare 111 implies reasonable protective measures from real and imminent risk to their life which the relevant authorities knew (or should have known) of.63 Only risk of a peculiar quality will trigger the duty to act;64 apparently, such risk should not be voluntarily assumed (either in the form of informed consent or otherwise).65 In this context, a practical question arises: can a person be a risk to herself? The answer in Rabone is in the affirmative, yet with necessary reservations; the person's rational judgement to end her life or inflict self-harm should be impaired.66 In drawing this reservation, the UKSC makes it clear that, as was put by Lady Hale, `autonomous individuals have a right to take their own lives if that is what they truly want'.67 This may be a way to reconcile at times opposing interests of individuals and the state acting as a custodian. Whether there can be an effective settlement between state authorities and an individual to whom the state owes an obligation which it fails to observe (and, accordingly, what the conditions of such settlement should be) is also an interesting question. This issue is particularly worthwhile when more than one jurisdiction is involved. Specifically, when the domestic jurisdiction and that of the ECtHR are engaged, necessary limitations should be placed on the right of appeal to avoid double remedy. Thus, the settlement is deemed to be achieved once the victim is granted `adequate redress' and acknowledgement of what in substance is the violation of the ECHR.68 If a type of redress sought under the ECHR is absent under the domestic law (as in case of Rabone)69 victims' claims would be accepted on this ground.
5 Conclusion
Over the course of the legal year 2011-12, the UKSC was asked to rule on several social welfare cases where differing, and at times diametrically opposed, interests were at stake. The UKSC's judgments in these cases reflect a cautious approach which leaves it to the legislature to define the appropriate balance of differing
63 Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2, para 12 (Lord Dyson); Osman v United Kingdom, Judgment of 28 October 1998, 1998-VIII, para 116; R C A White & C Ovey, Jacobs, White, & Ovey: The European Convention on Human Rights (2010) 152-156. 64 Rabone, above n 63, para 24 (Lord Dyson). 65 Ibid, paras 24, 30 (Lord Dyson); Horoz v Turkey, Judgment of 31 March 2009. 66 Rabone, above n 63, paras 30-34 (Lord Dyson). 67 Ibid, para 100 (Lady Hale) (emphasis added). 68 Ibid, paras 49, 72 (Lord Dyson). 69 Ibid, para 58 (Lord Dyson). 112 Ielyzaveta Badanova and Ann Sofie Cloots interests. The leitmotiv in this year's social welfare cases suggests that the UKSC is unwilling, at present, to allow a perceived unjust outcome in one specific case to upset the general balance decided upon by the legislator. Pragmatism appears to be another leitmotiv in the jurisprudence outlined above. This is especially apparent in the cases where the UKSC recognises the finite resources of the authorities in assessing individual social welfare claims. The UKSC's judgments are not detached from these very practical constraints in reality. Nor is its case law detached from that of the ECtHR70 and CJEU, which the UKSC relies on when interpreting domestic social welfare provisions.
70 The ECtHR has analysed social welfare payments from the angle of the right to property enshrined in Article 1 of the First Protocol to the ECHR. See e.g. Cousins, above n 20, 31. An argument on the basis of Article 1 of the First Protocol was also made in Humphreys, above n 19, where the UKSC confirmed that tax credits indeed fall under the protection of ECHR Article 1 of Protocol 1. DOI: 10.7574/cjicl.02.01.83 Cambridge Journal of International and Comparative Law (2)1: 113–120 (2013)
Treaty Interpretation before the Supreme Court
Callista Harris Krishna Kakkaiyadi
1 Introduction
One of the basic principles of international law is the general rule of interpreta- tion of treaties contained in Article 31 of the Vienna Convention on the Law of Treaties (VCLT).1 That Article provides in relevant part:
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. […] 3. There shall be taken into account, together with the context: […] (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation […]
Despite the fundamental nature of this rule, the various provisions of the Article are frequently misapplied. Two of the cases which came before the Supreme Court in the 2011-12 legal year raised issues of treaty interpretation. R (on the application of ST (Eritrea)) v Secretary of State for the Home Department (R v Secretary)2 concerned the application of paragraph 1 of Article 31 in the interpretation of the Convention relating to the Status of Refugees (Refugees Convention),3 and the infamous case of Assange v The Swedish Prosecution Authority (Assange)4 raised the effect of subsequent practice on treaty interpretation.
1 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. 2 [2012] UKSC 12. 3 Convention relating to the Status of Refugees, 28 July 1951, 189 UNTS 150. 4 [2012] UKSC 22.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 114 Callista Harris and Krishna Kakkaiyadi
2 The Supreme Court's approach
2.1 R v Secretary: Interpreting Article 32 of the Refugees Convention R v Secretary concerned the interpretation of Article 32 of the Refugees Conven- tion, which provides that `[t]he Contracting States shall not expel a refugee law- fully in their territory save on grounds of national security or public order'. The specific question raised by the case was what it means for a refugee to be `lawfully in'astate. AsLordHope5 noted, the phrase `lawfully in'requires a refugee to have a certain degree of attachment to the receiving state.6 The issue was: what level of attachment is required?7 The appellant was granted temporary admission to the UK, and the Immi- gration Appeal Tribunal subsequently found her to be a refugee. Following that decision, the Secretary of State refused the appellant leave to enter the UK per- manently on another basis.8 The appellant argued that she should be considered to have been `lawfully in'the UK since the date of the Tribunal's decision and that, thus, her removal from the UK was prohibited by Article 32 of the Refugees Con- vention. The High Court agreed,9 but its decision was overturned by the Court of Appeal.10 TheSupremeCourtsidedwiththeCourtofAppeal. Itquotedsection2ofthe Asylum and Immigration Act1993, which statesthat`[n]othingin theimmigration rules [...] shall lay down any practice which would be contrary to the [Refugees] Convention', and thus embarked on consideration of exactly what is required of the UK under the Refugees Convention. In reaching its decision, the Supreme Courthad to address two specific issues of treaty interpretation. First, counsel for the appellant argued:
[...] that it would be contrary to the proper construction and spirit and intendment of the [Refugees] Convention to hold that the
5 With whom Lady Hale and Lords Brown, Mance, Kerr and Clarke agreed, and whose reasoning Lord Dyson adopted: above n 2, para 54 (Lord Dyson). 6 Ibid, para 1 (Lord Hope). 7 Ibid, para 2 (Lord Hope). 8 Ibid, paras 3-8 (Lord Hope). 9 R (on the application of ST (Eritrea)) v Secretary of State for the Home Department [2008] EWHC Admin 3162. 10 R (on the application of ST (Eritrea)) v Secretary of State for the Home Department [2010] EWCA Civ 643. Treaty Interpretation before the Supreme Court 115
appellant was not lawfully present in the United Kingdom [...] This approach, he said, should lead one to conclude that article 32 had a broader purpose than a study of its language, if taken on its own, might suggest.11
Appeals to the object and purpose of the Refugees Convention are often made in an attempt to broaden the obligations suggested by the terms of its provisions alone. They are particularly common in relation to Article 33 of the Refugees Convention, which contains the obligation of non-refoulement. Reliance is placed, for example, on the preamble of the Refugees Convention, which provides that `the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms'.12 The Supreme Court accepted that the Refugees Convention `should be given a generous and purposive interpretation'.13 But it was, justifiably, unwilling to use statements such as the above to expand the Article 32 obligation beyond its terms. As provided in Article 31(1) of the VCLT, a treaty's object and purpose is a necessary factor to be considered in a provision's interpretation. However, it cannot be invoked to extend the obligations in fact agreed between states and set down in a treaty. As the Supreme Court stated:
[...] it must be remembered too that, however generous and purposive its approach to interpretation may be, the court's task remains one of interpreting the document to which the contracting parties have committed themselves by their agreement. [...] [I]t must interpret what the parties have agreed to. It has no warrant to give effect to what they might, or in an ideal world would, have agreed.14
This approach has also been taken in other contexts.15 It is not surprising that
11 Above n 2, para 25 (Lord Hope) (emphasis added). 12 Emphasis added. See e.g. UNHCR, `Advisory opinion on the extraterritorial application of non- refoulement obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol', 26 January 2007, para 29
One should not overlook the fact that article 31(1) of the Vienna Convention also states that a treaty should be interpreted `in accordance with the ordinary meaning to be given to the terms of the treaty in their context'. So the starting point of the construction exercise should be the text of the [Refugees] Convention itself […]17
Similarly, Lord Dyson stated that the `starting point is the language'.18 To the extent that such statements suggest primary (or even exclusive) reliance on ordinary meaning to justify an interpretation, they are misconceived. There is commonly no single `ordinary' meaning of a word such that the meaning of a provision can be determined without reference to the other factors identified in Article 31, such as object and purpose.19 The nature of the interpretative exercise required by Article 31 is best described by the International Law Commission (ILC), in relation to its draft which formed the basis of the VCLT:
The Commission [...] intended to indicate that the application of the means of interpretation in [Article 31] would be a single combined operation. All the various elements, as they were present in any given case, would be thrown into the crucible, and their interaction would give the legally relevant interpretation. Thus, [Article 31] is entitled `General rule of interpretation' in the singular, not `General rules' in the plural, because the Commission desired to emphasize that the process of interpretation is a unity and that the provisions of the article form a single, closely integrated rule.20
16 R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Commissioner for Refugees Intervening) [2004] UKHL 55. 17 Above n 2, para 31 (Lord Hope). 18 Ibid, para 54 (Lord Dyson). 19 R Gardiner, `The Vienna Convention rules on treaty interpretation', in D B Hollis (ed), The Oxford Guide to Treaties (2012) 475, 480. 20 ILC, `Draft articles on the law of treaties with commentaries', Commentary to Art 27, ILC Ybk 1966/II, 219-220 (para 8) (emphasis in original). See also Z Douglas, `The MFN clause in investment arbitration: treaty interpretation off the rails' (2011) 2 JIDS 97, 109. Treaty Interpretation before the Supreme Court 117
2.2 Assange: Subsequent practice and `treaty' interpretation
The Supreme Court chose to depart from its approach in R v Secretary and relied largely upon subsequent practice in Assange, thereby interpreting the phrase `judicial authority' to include prosecutors.21 With a focus on the ordinary meaning of `judicial authority' the expected outcome would have been an interpretation limited to courts, magistrates, judges and tribunals.22 Assange was charged with sexual molestation and rape in Sweden. The Swedish prosecutor obtained a domestic detention order in absentia, since Assange had by then travelled to the UK, and the respondent issued a European Arrest Warrant (EAW) signed by the prosecutor requesting the surrender of the appellant. The question before the Supreme Court was whether the EAW had been issued by a `judicial authority' for the purpose of Article 6 of Council Framework Decision 2002/584/JHA (Framework Decision)23 andsections2(2)and 66 of the Extradition Act 2003. The Supreme Court fleetingly considered the ordinary meaning of `judicial authority' in English and French,24 but came to the conclusion that a prosecutor could be considered a `judicial authority' based largely on consideration of subsequent practice.25 The practice relied on by the Supreme Court was the lack of objection from the European Council, the European Commission and states, to certain states appointing prosecutors as `judicial authorities'. The decision of the Supreme Court begs several questions. The first critical issue that the Supreme Court failed to clarify was the applicability of the VCLT to the impugned Framework Decision. Article 2(a) of the VCLT defines a `treaty' as an `international agreement concluded between States in written form and governed by international law'. Framework decisions were passed by the European Council under Article 34 of the Treaty on European Union (TEU)26 and their continued legal force is owed to transitory provisions of the Treaty of
21 Above n 4, para 76 (Lord Phillips). Lord Phillips handed down a judgment with which Lords Walker, Dyson and Brown concurred in separate decisions. Lord Kerr delivered a separate decision, while Lady Hale and Lord Mance dissented. 22 See e.g. above n 4, para 192 (Lady Hale, diss). In the UK, a judge is the issuing judicial authority. 23 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) [2002] OJ L190. 24 Above n 4, paras 16-21 (Lord Phillips). 25 Ibid, paras 67-71 (Lord Phillips), 94 (Lord Walker), 95 (Lord Brown), 106-108 (Lord Kerr), 130-131, 154, 171 (Lord Dyson). 26 Consolidated Version of the Treaty on European Union [1997] OJ C340/145. 118 Callista Harris and Krishna Kakkaiyadi
Lisbon.27 A framework decision passed by the European Council is clearly not a `treaty'. The Supreme Court put forth no explanation to justify the application of the VCLT to the Framework Decision. Itis possible thatthe Framework Decision could have been subject to a rule of interpretation comparable to Article 31 independently of the VCLT, but this possibility was not addressed by the Supreme Court.28 Even assuming that Article 31(3)(b) of the VCLT was applicable to the Framework Decision, it remains to be seen how there was sufficient subsequent practice to evidence an agreement that the phrase `judicial authority' has a broad meaning which includes prosecutors. Some practice relied on by the Supreme Court, such asthefactthattheEuropean Counciland theEuropean Commission, as distinct from individual states, did not object to the designation of prosecutors as `judicial authorities', may not amount to subsequent practice at all.29 The expression `subsequent practice [...] which establishes the agreement of the parties' in Article 31(3)(b) was never meant to imply that all parties had to engage in the relevant practice.30 But did the subsequent practice in the present case demonstrate the required agreement amongst the parties to construe prosecutors as judicial authorities? While it is clear that in some cases agreement can be inferred from the absence of a reaction,31 such an inference cannot be drawn in every case. Lady Hale raised this issue in her dissenting judgment:
Given the lack of common or concordant practice between the parties, is the failure to date of those countries which do not authorise prosecutors and other bodies to object to those who do sufficient to establish their agreement? Nobody in this country seems to have addressed their mind to the issue until it arose in this case. Failure to address minds to an issue is not the same as acquiescence in a particular state of affairs.32
27 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/01, Protocol on Transitional Provisions. 28 See e.g. VCLT, Art 3(b). 29 See e.g. Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion), ICJ Reports 1962 p 151, 189-190 (Judge Spender). Judge Spender stated that he finds it hard to equate the practice of an international organisation with the practice of the parties to a treaty. See also J Crawford, Brownlie's Principles of Public International Law (8th edn, 2012) 382. 30 ILC, `Draft articles on the law of treaties with commentaries', Commentary to Art 27, ILC Ybk 1966/II, 222 (para 15). 31 H Waldock, `Sixth report on the law of treaties', ILC Ybk 1966/II, 99 (para 18). 32 Above n 4, para 191 (Lady Hale, diss). Treaty Interpretation before the Supreme Court 119
Furthermore, subsequent practice may be used as a means of interpretation only if a single inference is open from that practice.33 Only 11 states include prosecutors within the scope of `judicial authority', and clearly inferences other than acquiescence can be drawn from the failure of other states to object, as indicated by Lady Hale. Care is needed when considering the effect of subsequent practice. Sir Humphrey Waldock, as the ILC Special Rapporteur, noted that:
Subsequent practice when it is consistent and embraces all the parties would appear to be decisive of the meaning to be attached to the treaty, at any rate when it indicates that the parties consider the interpretation to be binding upon them […] [I]f the interpretation adopted by the parties diverges, as sometimes happens, from the natural and ordinary meaning of the terms, there may be a blurring of the line between the interpretation and the amendment of a treaty by subsequent practice.34
There is a clear danger of reliance on non-representative subsequent practice resulting in the effective amendment of treaties without the required consent of all parties.
3 Conclusion
An analysis of this year's judgments shows that the Supreme Court was right in part but largely wrong in its approach to treaty interpretation. The only issue which the Supreme Court addressed correctly was the use of a treaty's object and purpose. However, on this issue the Supreme Court had clear guidance from the previous Roma Rights decision, a case on which both Lord Hope and Lady Hale sat. Overall, the Supreme Court's approach is a cause for concern, particularly as an incorrect approach to treaty interpretation can affect the application of any treaty.
33 Certain Brazilian Loans (1929) PCIJ Ser A No 21, 119, cited by the ILC in `Draft articles on the law of treaties with commentaries', Commentary to Art 27, ILC Ybk 1966/II, 222 (n 137). 34 H Waldock, `Third report on the law of the treaties', ILC Ybk 1964/II, 60 (para 25) (emphasis in original). 120 Callista Harris and Krishna Kakkaiyadi
Assange has already been followed in a catena of cases before lower courts,35 but there are signs that the correctness of the Supreme Court's approach to treaty interpretation will be challenged. Assange unsuccessfully sought to reopen his appeal before the Supreme Court to argue some of the issues discussed herein.36 In Lavrov v Estonia, before the Divisional Court, the appellant's counsel reserved the issue of whether framework decisions are treaties for argument before the Supreme Court, should the case proceed to that Court.37 It is surely only a matter of time before the application of Article 31 of the VCLT is debated before the Supreme Court again.
35 See e.g. Ministry of Justice, Lithuania v Mindaugas Bucnys; Marius Sakalis v Ministry of Justice, Republic of Lithuania; Dimitri Lavrov v Ministry of Justice, Republic of Estonia [2012] EWHC Admin 2771, para 52 (Lavrov v Estonia). 36 The request was declined due to a concession made earlier by Assange's counsel: above n 4, para 3 of the `Note' at the end of the judgment. 37 Aboven 35, paras49, 70. In theevent, theappellant'sappealwasallowed by theDivisionalCourt, so the case did not proceed further: see para 111. DOI: 10.7574/cjicl.02.01.69 Cambridge Journal of International and Comparative Law (2)1: 121–124 (2013)
Overview: Civil Procedure
Jure Zrilic
The Supreme Court decided ten cases involving aspects of civil procedure in the 2011-12 legal year. In two cases the Supreme Court dealt with issues related to Part 5 of the Proceeds of Crime Act 2002 (POCA). In Perry and others v Serious Organised Crime Agency,1 the Serious Organised Crime Agency (SOCA) obtained a worldwide property freezing order, the validity of which was contended by the appellant in so far as it extended to property outside of the UK. The Supreme Court, by majority, allowed the first appeal and concluded that Part 5 of POCA has no extraterritorial effect.2 With respect to the second appeal, which attacked the validity of information notices addressed to the first appellant and his daughters, the Supreme Court unanimously held that it would be a breach of international lawtoconferonaUKpublicauthoritythepowertoimposeonpersonsoutsideof the UK a positive obligation to provide information, subject to criminal sanctions in the event of non-compliance.3 Gale and another v Serious Organised Crime Agency4 concerned an order for the recovery of property issued under Part 5 of POCA, despite the fact that the first appellant had not been convicted of the criminal activity from which the propertyallegedlyderived. HehadbeenacquittedinPortugal. Havingconsidered the relevant case law of the European Court of Human Rights, the Supreme Court held that the acquittal in Portugal did not preclude the English courts, in proceedings under POCA, from considering the evidence that formed the basis of the charges in Portugal, as there was no procedural link between the two sets of proceedings.5 The Supreme Court further concluded that the commission of the criminal conduct from which the property was derived had to be established according to the civil and not the criminal standard of proof.6 For these reasons the Supreme Court unanimously dismissed the appeal.
1 [2012] UKSC 35. 2 Ibid, para 64. 3 Ibid, para 94. 4 [2011] UKSC 49. 5 Ibid, para 35. 6 Ibid, para 54.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 122 Jure Zrilic
The issue of costs in civil proceedings was considered by the Supreme Court in three cases. In the aforementioned case of Gale and another v Serious Organised Crime Agency, the Supreme Court decided that an order for costs made in favour of SOCA, against a person whom a recovery order has been made against under POCA, can include the investigation costs incurred by an interim receiver appointed by a judge since these are `costs of or incidental to the civil recovery proceedings'.7 In Re T (Children),8 the issue raised on appeal was whether in care proceed- ings, a local authority should be liable to pay an intervener's reasonable costs in relation to allegations of fact reasonably made by the authority against the inter- vener, which are held by a court to be unfounded. The case concerned grandpar- entswhojoinedcareproceedingsduetoallegationsofsexualabuse,butwerelater exonerated. The Supreme Court unanimously allowed the appeal and concluded that local authorities should be protected from liability in care proceedings.9 Anderson v Shetland Islands Council and another10 dealt with orders for security for costs of appeal that the respondents and the appellant were seeking from each other. While the Supreme Court dismissed the appellant's appeal on the basis thatboth respondents were public authorities capable ofmeeting any orders for costs,11 it held that the appellant should be ordered to give security for the respondents' costs since there were serious doubts regarding her ability to satisfy any order for costs, the appeal seemed to be wholly without merit, and the proceedings that the appellant pursued could be said to be an abuse of process.12 The Supreme Court considered children's interests in civil proceedings in two cases. In NJDB v JEG and another,13 the Supreme Court unanimously dismissed the appeal and confirmed that the sheriff, who in his judgment withdrew contact between the appellant and his child, had treated the welfare of the child as the paramount consideration.14 The Supreme Court was nevertheless criticalofthelengthoftheproceedingsbeforethesheriffandtheconsequenthigh costs,15 and thus made some recommendations, including reforms to the system
7 Ibid, para 80. 8 [2012] UKSC 36. 9 Ibid, para 42. 10 [2012] UKSC 7. 11 Ibid, para 14. 12 Ibid, para 15. 13 [2012] UKSC 21. 14 Ibid, para 13. 15 Ibid, para 22. Overview: Civil Procedure 123 of pleadings in family proceedings, reform in the form and style of the written judgment, and increased powers of case management.16 In BH and another v The Lord Advocate and another,17 the Supreme Court unanimously dismissed the appeal in which the appellants argued against their extradition to the US, as this would interfere with the exercise of their right to respect for their private and family life contrary to Article 8 of the European Convention on Human Rights (ECHR).18 The Supreme Court concluded that the best interests of their children were not strong enough to overcome the overwhelming public interest in giving effect to the request for extradition.19 The matter reached the Supreme Court as a devolution issue under the Scotland Act 1998, Schedule 6 paragraph 13. In W (Algeria) and BB (Algeria) v Secretary of State for the Home Department,20 the appellants were facing deportation to Algeria where they could be subjected to ill-treatment at the hands of the Algerian authorities contrary to ECHR Article 3. One of the appellants was in a position to put forward material from a source in Algeria relevant to safety on return, but only on an absolute and irrevocable assurance that there would be no onward disclosure to the Algerian authorities.21 The Supreme Court held that Special Immigration Appeals Commission has the jurisdiction to make an ex parte order prohibiting the Secretary of State from disclosing material to any person and to do so at or after a hearing from which the Secretary of State is excluded,22 but also emphasised that such power should be executed sparingly and with great care.23 In Fairclough Homes Limited v Summers,24 the Supreme Court unanimously dismissed the appeal and concluded that a civil court has the power to strike out a statement of case as an abuse of process, even after a trialat which the court has held that the defendant is liable in damages to the claimant in an ascertained sum. However, the Supreme Court stressed that such power should only be exercised where it is just and proportionate to do so.25
16 Ibid, paras 25-34. 17 [2012] UKSC 24. 18 Convention fortheProtection ofHuman Rightsand FundamentalFreedoms, 4 November1950, 213 UNTS 221. 19 [2012] UKSC 24, para 71. 20 [2012] UKSC 8. 21 Ibid, para 26. 22 Ibid, para 27. 23 Ibid, para 34. 24 [2012] UKSC 26. 25 Ibid, para 65. 124 Jure Zrilic
In Ministry of Defence v AB and others,26 the Supreme Court considered whether the claims of veterans for injuries alleged to have been sustained by exposure to radiation during nuclear tests conducted by the respondent were time-barred under section 11 of the Limitation Act 1980. The Supreme Court, by majority, dismissed the appeal and concluded that all nine of the appellants had the requisite knowledge more than three years before they issued their respective claims; in other words, each reasonably believed that the injury was able to be attributed to the nuclear tests conducted by the respondent.27 Lord Phillips in his dissent expressed a different view about the concept of knowledge in the Limitation Act. He held that `[n]o veteran could acquire the knowledge that started limitation running until there was accessible to him scientific evidence that demonstrated the possibility that his injury was caused by exposure to ionising radiation'.28 In Phillips v Mulcaire,29 Ms Phillips, the claimant in the proceedings, success- fully relied on section 72 of the Senior Courts Act 1981 as excluding the privilege againstself-incrimination, whichthedefendanthadtriedtoinvoke. TheSupreme Courtfirstdecidedthattheinformationdescribedinthepleading(voicemailmes- sageswhichthedefendantintercepted)was`technicalorcommercialinformation' falling within the definition of `intellectual property' in section 72(5) of the Senior Courts Act.30 With respect to the second issue concerning the definition of `re- lated offence'in section 72(5), the Supreme Court held that a charge of conspiracy tocommitoffencesundersection1(1)oftheCriminalLawAct1977wasachargeof an offence committed in the course of the infringement to which the claimant's civil proceedings related. It held that the conspiracy was a related offence and thus unanimously dismissed the appeal.31
26 [2012] UKSC 9. 27 Ibid, para 25. 28 Ibid, para 107. 29 [2012] UKSC 28. 30 Ibid, para 33. 31 Ibid, para 45. DOI: 10.7574/cjicl.02.01.70 Cambridge Journal of International and Comparative Law (2)1: 125–127 (2013)
Overview: Constitutional and Administrative Law
Philippe Boisvert
Five constitutional and administrative law cases were heard by the Supreme Court in the 2011-12 legal year. Axa General Insurance Limited and others v The Lord Advocate and others (Scotland)1 concerned whether Acts of the Scottish Parliament can be judicially reviewed. Insurers challenged the legality of the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which provides that asymptomatic pleural plaques constitute an actionable harm in themselves. This Act effectively reversed the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd.2 While the Supreme Court accepted that the insurers had victim status,3 it rejected their claim that the Act violated their right to property under Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR)4 and that it was unreasonable and irrational. Even the retroactive aspect of the Act5 was not sufficient to conclude that the compensation scheme was disproportionate.6 In rejecting the insurers' second ground, the Supreme Court considered whether Acts of the Scottish Parliament were amenable to judicial review. It analysed the nature of the devolved powers and concluded that while the Scottish Parliament did not possess sovereignty—an attribute which remains with the United Kingdom Parliament—it is nevertheless a self-standing democratically elected legislature with plenary powers. The Supreme Court held that Acts of the Scottish Parliament are in principle reviewable, but that judges should intervene only in the most exceptional circumstances.7 In this case, it found that it would
1 [2011] UKSC 46. 2 [2007] UKHL 39. 3 Axa General Insurance, above n 1, paras 28 (Lord Hope), 73 (Lord Brown), 86 (Lord Mance), 112 (Lord Reed). 4 Convention fortheProtection ofHuman Rightsand FundamentalFreedoms, 4 November1950, 213 UNTS 262. 5 Damages (Asbestos-related Conditions) (Scotland) Act 2009 s 4. 6 Axa General Insurance, above n 1, paras 37 (Lord Hope), 81 (Lord Brown), 95-96 (Lord Mance), 134 (Lord Reed). 7 Ibid, paras 47-49 (Lord Hope), 139, 147 (Lord Reed).
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 126 Philippe Boisvert be wrong for judges to substitute their views for those of a democratically elected legislature. It must also be noted that the Supreme Court elaborated on the standing requirement and clarified the jurisprudence of the Scottish courts with respect to public law standing.8 In Sugar v BBC,9 the Supreme Court interpreted the scope of a limitation relating to the BBC in the Freedom of Information Act 2000.10 The limitation provides that the Act applies only `in respect of information held for purposes other than those of journalism, art or literature'. The House of Lords had previously confirmed that the BBC was a public authority for the purposes of the Act.11 Sugar sought to obtain the disclosure of a report on the BBC's coverage of the Middle East. The Supreme Court concluded that the BBC held the report at all material times for the purposes of journalism and could thus validly refuse to disclose it under the Act. The Supreme Court also elaborated on the proper construction of the limitation. It came to the conclusion that Parliament had failed to consider the scenario where the BBC may hold the information partly for purposes of journalism and partly for other purposes. Various approaches were suggested by the members of the Supreme Court, but on the whole, the majority construed the limitation broadly, with the result that such information would be protected from disclosure.12 The Supreme Court also rejected the argument that the failure to disclose the report breached Sugar's right to receive information under Article 10 of the ECHR. The requirement to lay immigration rules before Parliament pursuant to the Immigration Act 197113 was considered in two cases. In R (on the application of Munir and another) v Secretary of State for the Home Department,14 and R (on the applicationofAlvi)vSecretaryofStatefortheHomeDepartment,15 theSupremeCourt considered whether certain documents were required to have been laid before Parliament. The Supreme Court also clearly established that the Secretary of State could not control immigration at common law under the Royal Prerogative, as this power was displaced by statute.
8 Ibid, paras 53-64 (Lord Hope), 159-175 (Lord Reed). 9 Sugar (Deceased)(Represented by Fiona Paveley)v British Broadcasting Corporation and another [2012] UKSC 4. 10 Freedom of Information Act 2000 Part VI of Schedule 1. 11 Sugar v British Broadcasting Corporation and another [2009] UKHL 9. 12 Sugar v BBC, above n 9, paras 75, 82 (Lord Walker). 13 Immigration Act 1971 s 3(2). 14 [2012] UKSC 32. 15 [2012] UKSC 33. Overview: Constitutional and Administrative Law 127
In Alvi, the dispute was in the context of the operation of the points-based system for immigration. The majority of the Court developed a new test according to which any requirement which a migrant is required to satisfy as a condition to enter or remain in the United Kingdom constitutes a `rule' and therefore needs to be laid before Parliament.16 Some requirements imposed on Alvi were contained in various guidance documents which had not been laid before Parliament. In Munir, the Supreme Court considered the impact of a statement of policy granting concessions by the Secretary of State related to deportation cases. The Supreme Court held that the statement of policy did not amount to a `rule' as it was highly flexible and dependent on individual circumstances. It was thus not required to have been laid before Parliament.17 Finally, in R (on the application of Davies and another) v The Commissioner for Her Majesty's Revenue and Customs; R (on the application of Gaines-Cooper) v The Commissioners for Her Majesty's Revenue and Customs,18 a case which is discussed in more detail in this volume in the `Overview: tax law' article, the Supreme Court considered the impact of guidance issued by the Commissioner on the interpretation of the relevant statutory provisions providing for the status of `residence' and `ordinary residence' for tax purposes.
16 Ibid, para 94. 17 Munir, above n 14, para 46. 18 [2011] UKSC 47. DOI: 10.7574/cjicl.02.01.79 Cambridge Journal of International and Comparative Law (2)1: 128–130 (2013)
Overview: Criminal Law
Estelle Wolfers
In the 2011-12 legal year, the Supreme Court handed down nine judgments concerning various aspects of the criminal law. Several judgments1 sought to elucidate the principle established in Cadder v HM Advocate2 that admissions made by a suspect during a police interview prior to being offered legal advice were unlawfully obtained and could not be relied upon at trial without contravening Article 6 of the European Convention on Human Rights (ECHR).3 In Ambrose,theSupremeCourtconsideredwhetherthisprinciplealsoapplied to the questioning under caution of someone who had not yet been taken into police custody. By a majority of four to one, the Justices decided that it would not ordinarily be unfair to admit such evidence. In the joined case of G, however, it was held to be incompatible with the accused's Convention rights for the Lord Advocate to lead evidence of his incriminating statements because his freedom to choose whether or not to answer questions had been significantly curtailed by his being handcuffed at the relevant time. These cases also raise the more general question of whether a national court can, or should, extend the scope of a Convention right into areas which have not yet been subject to an authoritative ruling from the European Court of Human Rights. In his leading judgment in Ambrose, Lord Hope confirmed previous authorities by arguing that, `[i]t is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies'.4 This question arose again in P, a case in which the Supreme Court had to consider whether evidence obtained from a line of enquiry that had been prompted by an admission obtained in contravention ofthe Cadder principle, was
1 Ambrose v Harris, HM Advocate v G, HM Advocate v M [2011] UKSC 43; HM Advocate v P [2011] UKSC 44; McGowan v B [2011] UKSC 54; and Jude v HM Advocate, Hodgson v HM Advocate, Birnie v HM Advocate [2011] UKSC 55. 2 [2010] UKSC 43. 3 ConventionfortheProtectionofHuman RightsandFundamentalFreedoms, 4November1950, 213 UNTS 221. 4 Ambrose, above n 1, para 20 (Lord Hope).
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. Overview: Criminal Law 129 itself automatically inadmissible. In Gäfgen v Germany,5 the European Court of Human Rights had acknowledged that there was no clear consensus about the extent to which subsequent evidence should be inadmissible. In the light of this, theSupremeCourtin P held that admission of the evidence was not incompatible with P's Convention rights. The judgments in McGowan and Jude concerned suspects in police custody who had been informed of their right to a lawyer before being interviewed, but who had declined to exercise that right without taking separate legal advice as to the consequences of such a decision. In McGowan, the Supreme Court held, by a majority of four to one, that it was not in principle incompatible with a suspect's Convention rights to rely on evidence obtained in such circumstances. In Birnie, where there was doubt over whether the suspect's waiver was freely given, the appeal was allowed by a majority of four to one and the case remitted to the High Court of Justiciary. Another three cases heard by the Supreme Court concerned the question of property obtained through unlawful conduct. In Gale v Serious Organised Crime Agency,6 the Supreme Court held that the use of the civil standard of proof in determining whether a defendant's assets were the proceeds of crime for the purposesoftheProceedsofCrimeAct2002didnotbreachArticle6oftheECHR byundermininganot-guiltyverdict,incaseswherethecivilproceedingswerenot `a consequence and the concomitant' of the criminal proceedings.7 Stanford International Bank v Director of the Serious Fraud Office8 also con- cernedtheProceedsofCrimeAct2002. Inthiscase,thecriticalissuewaswhether an appeal to the Supreme Court existed in respect of restraint orders made under Part 11 of the Act. The Supreme Court held that an initial failure to transfer the appellate jurisdiction of the House of Lords to the Supreme Court in respect of such an order had been corrected and that leave and certification requirements could not be applied retroactively. In Re Peacock,9 the relevant unlawful conduct had taken place before the 2002 Act came into force. At the time of his sentence, Peacock's realisable assets represented only a small proportion of the amount by which he was held to have benefited from drug trafficking. After a confiscation order was issued for this
5 (2010) 52 EHRR 1. 6 [2011] UKSC 49. 7 Ibid, para 21; see also Sekanina v Austria (1993) 17 EHRR 221; Rushiti v Austria (2000) 33 EHRR 1331. 8 [2012] UKSC 3. 9 [2012] UKSC 5. 130 Estelle Wolfers lessersum, hesubsequentlyacquired substantialassetsfrom alegitimatebusiness. The High Court therefore sought to increase the amount of the confiscation order. The Supreme Court agreed unanimously that section 16(2) of the Drug Trafficking Act 1994 remained in force for offences committed before 24 March 2003, and decided by a majority of three to two that section 16 left it to the discretion of the courts whether to deprive a defendant of subsequently-acquired assets, however obtained. In R v Gnango,10 a case discussed at length elsewhere in this volume, the Supreme Court attempted to clarify the law of joint enterprise. A passer-by was killed during a gunfight between Gnango and B, analysis showing that the fatal bullet came from B's gun. B, however, was never caught and Gnango was convicted of murder on the basis of joint enterprise. The Supreme Court upheld this decision by a majority of six to one. Four Justices11 based their decision on a finding of accessory liability—that, by agreeing to the fight, Gnango had aided and abetted B in his own attempted murder. The remaining two Justices12 argued that Gnango was liable as a joint principal in an enterprise to engage in unlawful violence designed to cause death or serious injury, as a result of which, death occurred. Lord Kerr, dissenting, held that the jury had not been asked to find the necessary elements of aiding and abetting—that is, whether Gnango had truly agreed to be shot at, nor that the shoot-out had been planned and that each party had encouraged the other to shoot. He also considered that there was no basis for holding Gnango liable as a principal. In the high-profile case of Assange v Swedish Prosecution Authority,13 the SupremeCourtdecidedbyamajorityoffivetotwothatapublicprosecutorwasa valid judicial authority for the purposes of the Extradition Act 2003, the UK Act which gives effect to the Framework Decision on European Arrest Warrants.14 The Assange case is described in more detail in this volume in the `Overview: international law' article by Mary Roberts and in `Treaty interpretation before the Supreme Court' by Callista Harris and Krishna Kakkaiyadi.
10 [2011] UKSC 59. 11 Lords Phillips and Judge, Lords Wilson and Dyson concurring. 12 Lords Brown and Clarke. 13 [2012] UKSC 22. 14 CouncilFrameworkDecisionof13June2002ontheEuropeanarrestwarrantandthesurrender procedures between Member States (2002/584/JHA) OJ L 190. DOI: 10.7574/cjicl.02.01.71 Cambridge Journal of International and Comparative Law (2)1: 131–135 (2013)
Overview: Economic and Safety Regulation
Thomas J Miller
The Supreme Court decided 15 cases involving economic and safety regulation in the 2011-12 legal year. Two cases involved commercial disputes. In Rainy Sky SA and others v Kook- min Bank,1 the Supreme Court reviewed principles of contract interpretation. In weighing two possible constructions of an ambiguous provision in a commercial contract, theSupremeCourtreinforced theprinciplethatitisgenerallyappropri- ate to choose the interpretation that is consistent with `business common sense'. Thus, to determine what the parties intended contract language to mean, courts may look to the commercial purpose of the agreement. In SerVaas Incorporated v Rafidian Bank and others,2 the Supreme Court addressed the scope of the commercial activity exception to sovereign immunity. According to a UK-wide statute, judgments may be enforced against state property that is `in use or intended for use for commercial purposes'.3 SerVaas obtainedadefaultjudgmentinFranceagainsttheIraqigovernmentinconnection with a commercial contract and sought to enforce the judgment in England throughathirdpartydebtorderoverfundsRafidianBankowedtoIraq. TheIraqi government argued successfully that the funds did not fall into the commercial activity exception because it did not intend to use Rafidian's funds for any commercial purpose. The Supreme Court observed that the origins of the underlying debt were irrelevant in determining whether the funds were `in use' for commercial purposes. The Supreme Court issued six decisions related to employment law, includ- ing three regarding workplace discrimination. In Russell and others v Transocean International Resources Limited and others,4 the Supreme Court examined whether the Working Time Regulations 1998 required that offshore workers in the oil and gas industry receive additional paid leave. Offshore employees generally alter- nate between two weeks working offshore and two weeks of onshore leave and
1 [2011] UKSC 50. 2 [2012] UKSC 40. 3 State Immunity Act 1978 s 13(4). 4 [2011] UKSC 57.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 132 Thomas J Miller the workers argued that the annual leave requirements were not satisfied by time spent onshore. In interpreting the European Directive related to working time, theSupremeCourtconcludedthatthe`restperiod'requiredbytheDirective`sim- ply means any period which is not working time' and was thus satisfied by the workers' time onshore.5 In Edwards v Chesterfield Royal Hospital NHS Foundation Trust; Botham v Ministry of Defence,6 the Supreme Court revisited the principle established in Johnson v Unisys Ltd7 that certain contract law claims related to unfair dismissal are limited by the statutory regime of the Employment Rights Act 1996. In both Edwards and Botham, employees sought contract law damages based on their employers' failure to comply with contractual disciplinary procedures prior to their dismissal. The Supreme Court concluded that the employees' claims were sufficiently connected with the dismissal to fall within the scope of Johnson and, as such, were limited to the damages recoverable under the Employment Rights Act 1996. Ravat v Halliburton Manufacturing and Services Ltd8 concerned the scope of Employment Tribunal jurisdiction. The Supreme Court examined whether the Tribunal could consider an action brought by a British citizen and resident working abroad for a British company. The Supreme Court defined the inquiry as whether the `employment relationship [had] a stronger connection with Great Britain than with the foreign country where the employee works' and whether the relationship was sufficiently strong to `enable it to be presumed that, although they were working abroad, Parliament must have intended that [the Employment Rights Act 1996] should apply to them'.9 The Supreme Court noted that the inquiry is a question of `fact and degree', and that certain considerations, such as assurances given to the employee and where the employee lives, may be relevant in the analysis.10 On the topic of workplace discrimination, the Supreme Court in Hewage v Grampian Health Board11 upheld a decision of the Employment Tribunal against a challenge thatithad used insufficiently alike comparators to infer the existence of discrimination. The Supreme Court stressed that the comparability of two cases
5 Ibid, para 36. 6 [2011] UKSC 58. 7 [2001] UKHL 13. 8 [2012] UKSC 1. 9 Ibid, paras 27-28. 10 Ibid, paras 28-29. 11 [2012] UKSC 37. Overview: Economic and Safety Regulation 133 was a question of fact and degree, and also cautioned against `mak[ing] too much of the role of the burden of proof provisions' in establishing a prima facie case for discrimination.12 The Supreme Court also decided two age discrimination cases. In Homer v Chief Constable of West Yorkshire Police,13 an employee challenged a newly implemented salary-grading structure that required employees to hold a law degree in order to reach the highest grade. Because securing a law degree would have taken him past the retirement age, the employee sued for indirect discrimination under the Employment Equality (Age) Regulations 2006. The Supreme Court agreed that the policy constituted indirect age discrimination through its disproportionate impact on older workers. As a result, it remitted the case to consider whether there was appropriate justification for the provision as a `proportionate means of achieving the legitimate aims of the organisation'.14 Relevant considerations include whether non-discriminatory alternatives were available and whether an appropriate balance was struck between the impact on the affected group and the importance of the employer's aim. In SeldonvClarksonWrightandJakes,15 theSupremeCourtexaminedthelegal- ity of compulsory retirement provisions in partnership agreements. After con- cluding that the provision was direct age discrimination, the Supreme Court in- quired whether the policy was justified. The Supreme Court surveyed jurispru- dence from the Court of Justice of the European Union to identify potentially appropriate aims and found that `inter-generational fairness' (and specifically fa- cilitatingaccesstoemploymentforyoungpeople)wasanappropriatejustification offered by the employer. The Supreme Court concluded that the regulations give:
[…] employers and partnerships the flexibility to choose which objectives to pursue, provided always that (i) these objectives can count as legitimate objectives of a public interest nature within the meaningoftheDirectiveand(ii)areconsistentwiththesocialpolicy aims of the state and (iii) the means used are proportionate […]16
The Supreme Court also decided three cases related to insolvency law. In Secretary of State for Work and Pensions v Payne and another,17 the Supreme Court
12 Ibid, para 32. 13 [2012] UKSC 15. 14 Ibid, para 25. 15 [2012] UKSC 16. 16 Ibid, para 55. 17 [2011] UKSC 60. 134 Thomas J Miller analysed whether the government could remedy a welfare benefit overpayment by reducing subsequent payments to the individual, despite the presence of a Debt Relief Order and accompanying moratorium period. The Supreme Court concluded that the payment reductions were impermissible because the obligation to refund overpayments arose independently of statutory benefit entitlements. As such, efforts to reclaim overpayments were barred during the moratorium period. In Re Lehman Brothers International (Europe) (In Administration),18 the Supreme Court addressed several issues related to the Client Asset (CASS) rules on the segregation of client and firm funds. First, the Supreme Court held that the statutory trust and related fiduciary duties arise under the CASS rules as soon as the firm receives clientfunds, regardless ofwhether the fundshave been placed in a segregated client account. Secondly, the Supreme Court held that identifiable client funds could be placed into a pool for distribution even though they had not been properly segregated. Finally, the Supreme Court held that clients whose funds should properly have been segregated could participate in the client funds distribution scheme. The Supreme Court highlighted that the CASS rules were designed in part to protect clients from having to make claims under normal insolvency procedures. In Re Kaupthing Singer and Friedlander Ltd (In Administration),19 the Supreme Court reaffirmed the `rule against double proof' in insolvency law. The rule against double proof prevents duplicative claims by barring a surety from competing with a creditor to collect on the same underlying debt. The rule prevents a surety both from moving to indemnify the principle debtor and from setting off his or her right to an indemnity against any separate debt he or she owes to the debtor. Sureties and guarantors cannot pursue such claims against principal debtors until the original obligation to the creditor is discharged. Finally, the Supreme Court issued four decisions related to health and safety regulations. In Rabone and another v Pennine Care NHS Foundation Trust,20 the Supreme Court examined whether the `operational duty' of the state to prevent harm to individuals under Article 2 of the European Convention on Human Rights21 applied to protecting a suicidal psychiatric patient who was not formally committed to a mental institution. Although noting that acts of negligence by
18 [2012] UKSC 6. 19 [2011] UKSC 48. 20 [2012] UKSC 2. 21 ConventionfortheProtectionofHuman RightsandFundamentalFreedoms, 4November1950, 213 UNTS 221. Overview: Economic and Safety Regulation 135 hospital staff would normally not give rise to a breach of Article 2, the Supreme Court concluded that the Trust had an operational duty to protect the patient from suicide. The duty arose as a result of the patient's vulnerable status and the control exercised by hospital staff over the patient. In the EL Trigger Litigation,22 the Supreme Court examined whether insur- ance liability for asbestos-related mesothelioma arose at the time of exposure to asbestos or at the manifestation of the disease. Expressing concern over potential gapsinhealthinsurancecoverageandpointingtothepolicyaimsoftheCompen- sation Act 2006, the Supreme Court held that insurance liability arose at the time of exposure to the asbestos rather than the manifestation of mesothelioma. In another asbestos-related case, AXA General Insurance Ltd v The Lord Advocate and others,23 the Supreme Court rejected constitutional and common law challengesto theDamages(Asbestos-related)Conditions(Scotland)Act2009, which provided that symptomless asbestos-related pleural plaques constituted an actionable personal injury harm. The Act reversed the House of Lords judgment in Rothwell v Chemical & Insulating Co Ltd24 that such plaques could not sustain a personal injury claim. The Supreme Court also broadened the scope of standing under Scots Law, which previously had required `title to sue'. Finally, R (on the application of KM) v Cambridgeshire County Council25 concerned the provision of disability payments by local authorities under section 29 of the National Assistance Act 1948. A disabled individual challenged the amount and basis of a disability aid award issued by Cambridgeshire County Council. Although the Supreme Court concluded that the aid award was lawful, it underlined the legal obligation to provide detailed justifications for the basis of the award. Such an explanation includes informing the aid recipient of the calculations used to generate the award amount.
22 [2012] UKSC 14. The full name of the case is BAI (Run Off) Limited (In Scheme of Arrangement) v Durham; BAI (Run Off) Limited (In Scheme of Arrangement) v Thomas Bates and Son Limited; Excess Insurance Company Limited v Akzo Nobel UK Limited; Excess Insurance Company Limited v Amec plc; Excess Insurance Company Limited v Edwards; Independent Insurance Company Limited v Fleming and another; Municipal Mutual Insurance Company v Zurich Insurance Company and others; Municipal Mutual Insurance Limited v Zurich Insurance Company; Municipal Mutual Insurance Limited v Zurich Insurance Company and Adur District Council and others. 23 [2011] UKSC 46. 24 [2007] UKHL 39. 25 [2012] UKSC 23. DOI: 10.7574/cjicl.02.01.80 Cambridge Journal of International and Comparative Law (2)1: 136–139 (2013) Overview: European Law Ana Júlia Maurício
Seven cases concerning European law came before the Supreme Court in the 2011-12 legal year. The primary issue in Human Genome Sciences Inc v Eli Lilly and Company1 was the way in which the requirement of industrial applicability extended to a patent for biological material. The relevant principles stemmed from the jurisprudence of the European Patent Office (EPO) and of the Technical Board of Appeal of the Opposition Division (Board). Although English courts are not bound by the Board's reasoning, they should normally follow the EPO's jurisprudence, especially where the Board had adopted a consistent approach.2 The standard set by the Court of Appeal on the necessary description for illustrating that a particular use for the product had actually been demonstrated in industrial activity was more exacting than the one used by the Board.3 The Supreme Court, therefore, unanimously overturned the decision of the Court of Appeal since it was inconsistent with the approach adopted by the Board. Russell v Transocean International Resources Ltd4 concerned the issue of whether the period offshore workers spent onshore should count towards their entitlement to paid annual leave. The Supreme Court unanimously dismissed the request for a preliminary reference to the Court of Justice of the European Union (CJEU) and the appeal.5 This was because the term `rest period' included the periods when the employees were on field break onshore, as permitted by the Working Time Regulations 1998/1833, read in conformity with Directive 2003/88/EC.6 Seldon v Clarkson Wright and Jakes (A Partnership)7 concerned a mandatory retirement age clause contained in a partnership agreement and, more generally, the scope for justifying direct discrimination on the grounds of age.8 The
1 [2011] UKSC 51. 2 Ibid, paras 42, 84, 87-88. 3 Ibid, paras 94-95, 151, 154-156, 166, 168-170, 172. 4 [2011] UKSC 57. 5 Ibid, para 43. 6 OJ L 299; [2011] UKSC 57, paras 36, 38. 7 [2012] UKSC 16. 8 Ibid, para 1.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. Overview: European Law 137 appeal was unanimously dismissed, based on a two-fold assessment. First, the Supreme Court held that the Employment Equality (Age) Regulations 2006/1031 provided for flexibility as to the aims pursued, on condition that such aims were legitimate objectives of a public interest nature within the meaning of Directive 2000/78/EC9 and that they were consistent with social policy aims. Further, the means used had to be appropriate and reasonably necessary to achieve the aims.10 The aims in casu were consistent with the Directive and could be redirected to the categories accepted as legitimate by the CJEU.11 Secondly, the rule had to be justified in the particular circumstances of the business, which differed from having to justify its application to a particular individual.12 Test Claimants in the Franked Investment Income Group Litigation v Commis- sioners of Inland Revenue13 involved various issues related to the tax treatment of dividends received by UK-resident companies from non-resident subsidiaries in comparison with the treatment of dividends received from subsidiaries within wholly UK-residentgroups ofcompanies.14 Therewerefourmainquestions. The central one regarding EU law was whether member states (MS) were required to make an adequate remedy available in compliance with the principles of equiv- alence and effectiveness, or whether every remedy available under domestic law had to be available.15 The Supreme Court, by majority,16 decided that the Wool- wich remedy17 alone did not meet the requirements of equivalence and effective- ness,18 and that the retrospective application of the limitation period was incom- patible with EU law.19 It held unanimously that the appellants had a legitimate expectation to have their DMG claims20 judicially decided, it being unlawful for Parliament to curtail without notice the extended limitation period for the mis- take cause of action.21 Due to the Supreme Court's division on the question as to which available remedies were required by EU law, the issue was not acte clair
9 OJ L 303. 10 [2012] UKSC 16, paras 55, 59-62. 11 Ibid, paras 56-58, 67. 12 Ibid, paras 63, 65-66. 13 [2012] UKSC 19. 14 Income and Corporation Taxes Act 1988 s 18; [2012] UKSC 19, para 2. 15 Ibid, paras 13, 38. 16 Ibid, paras 123, 142 (Lords Sumption and Brown, diss). 17 Claim for restitution of tax unlawfully demanded: ibid, para 5. 18 Ibid, paras 21, 212. 19 Ibid, paras 15, 22, 115, 135-136, 140, 209, 241. 20 Claim for tax wrongly paid under a mistake: ibid, para 5. 21 Ibid, paras 15, 22, 115, 129, 140, 203, 209. 138 Ana Júlia Maurício and was referred to the CJEU for a preliminary ruling.22 Lukaszewski v The District Court in Torun, Poland23 raised several issues relating to the requirements and consequences of non-compliance with the time limits introduced by the Extradition Act 2003.24 Concerning European law, the question was whether the time limits were subject to any qualification or exception.25 The appellants in Lukaszewski, Pomiechowski and Rozanski invoked Article 5(4) of the European Convention on Human Rights (ECHR),26 but the Supreme Court decided that it was not applicable because they wished to challenge the extradition decision, rather than the fact that they were remanded in custody pending extradition.27 Regarding Article 6(1) of the ECHR, extradition did not involve the determination of a criminal charge.28 However, the appellant in Halligen was a British citizen, who enjoyed a right to enter and remain in the UK. Consequently the `determination' of that civil right was in question, and the extradition proceedings against him fell within Article 6(1).29 Therefore, the statutory provisions concerning appeals should be interpreted as being subject to the qualification that the court must have discretion in exceptional circumstances to extend time for filing and service, where such provisions would otherwise prevent an appeal in a way incompatible with Article 6(1).30 The appellant in Assange v The Swedish Prosecution Authority31 was the subject ofaEuropeanArrestWarrant(EAW)issuedbytheSwedishProsecutingAuthority pursuant to the Framework Decision 2002/584/JHA (FD).32 He challenged the validity of the EAW on the ground that a public prosecutor was not a `judicial authority' as required by Article 6 of the FD and by Part 1 of the Extradition Act 2003. The Supreme Court, by majority,33 dismissed the appeal, holding that a
22 Ibid, para 23. 23 [2012] UKSC 20. The full name of the case is Lukaszewski v The District Court in Torun, Poland; Pomiechowski v District Court of Legunica 59-220 Poland; Rozanski v Regional Court 3 Penal Department Poland; R (on the application of Halligen) v Secretary of State for the Home Department. 24 Ibid, para 1. 25 Ibid, para 22. 26 ConventionfortheProtectionofHuman RightsandFundamentalFreedoms, 4November1950, 213 UNTS 221. 27 [2012] UKSC 20, paras 22-23, 26. 28 Ibid, para 31. 29 Ibid, paras 32-33, 37. 30 Ibid, para 39. 31 [2012] UKSC 22. 32 CouncilFrameworkDecisionof13June2002ontheEuropeanarrestwarrantandthesurrender procedures between Member States (2002/584/JHA) OJ L190. 33 [2012] UKSC 22, paras 172-266. Overview: European Law 139
EAW issued by a public prosecutor was valid. Although the Supreme Court was not bound to interpret Part 1 of the Extradition Act 2003 in accordance with the FD,themajorityagreedtodoso.34 TheFD aimedtocreateasinglesystem, which required a uniform interpretation of `judicial authority'.35 Despite not being part of the FD's final version, an earlier draft stated expressly that a prosecutor was a judicial authority.36 Therefore, the majority concluded that the intention had not been to restrict the meaning of `judicial authority' to a judge.37 It also relied on the subsequent practice of several MS, which had designated public prosecutors as a competent judicial authority authorised to issue EAWs.38 The main issue in Oracle America Inc (Formerly Sun Microsystems Inc) v M-Tech Data Ltd39 was whether, regarding Articles 34 to 36 of the Treaty on European Union,40 there was an implied limitation on the application of Article 5 of Directive 89/104/EEC41 to preclude any exercise of trade mark rights that would have the object or effect of partitioning the European Economic Area's (EEA) internal market.42 The right of a trade mark proprietor to control the first marketing of their goods in the EEA, except when that right had been unequivocally renounced, was held to be unqualified.43 Moreover, the exercise of the proprietor's rightwas notan abuse ofrights under EU law.44 The Supreme Court considered that a preliminary reference to the CJEU would be unnecessary and unanimously allowed the appeal.45
34 Ibid, paras 122, 208-217. 35 Ibid, paras 10, 113. 36 Ibid, para 14. 37 Ibid, para 61. 38 Ibid, paras 70, 92, 95, 114-119, 160-170. 39 [2012] UKSC 27. 40 Consolidated Version of the Treaty on European Union, 2010/C 83/01 OJ 47. 41 OJ L 40. 42 [2012] UKSC 27, para 11. 43 Ibid, paras 14-16, 18-28. 44 Ibid, para 35. 45 Ibid, paras 36-37. DOI: 10.7574/cjicl.02.01.96 Cambridge Journal of International and Comparative Law (2)1: 140–144 (2013)
Overview: Family Law
Natasa Mavronicola
The Supreme Court decided ten cases on family law in the 2011-12 legal year on a range of matters. In Quila,1 the claimants argued that the Secretary of State's amendment of the Immigration Rules to ban the entry for settlement into the UK of foreign spouses or civil partners unless both parties were aged 21 or over, raising the age from 18, breached Article 8 of the European Convention on Human Rights (ECHR).2 The Supreme Court (Lord Brown dissenting) agreed with the claimants. In assessing whether the interference with the claimants' rights was proportionate, the Supreme Court considered the Secretary of State's argument that the amendment sought to deter forced marriages and found it lacking, particularly in evidence of effectiveness.3 Given that the amendment constituted a serious interference with private and family life, as well as marriage rights, the Supreme Court found it disproportionate and therefore in breach of Article 8 ECHR.4 In Jones v Kernott,5 the Supreme Court considered the beneficial entitlements of former cohabitants to the home they had shared during their cohabitation. Referring to key case law on constructive trusts, notably Stack v Dowden6 and Oxley v Hiscock,7 the Supreme Court established the following principles:
1. the starting point for joint names cases is that equity follows the law and the parties are joint tenants both in law and in equity;
1 R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45. 2 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221. 3 Quila, above n 1, para 58. 4 Ibid, paras 58-59. 5 [2011] UKSC 53. 6 [2007] UKHL 17. 7 [2004] EWCA Civ 546.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. Overview: Family Law 141
2. the presumption of equality can be displaced by showing a different initial common intention among the parties or a later common intention that their shares would change;
3. in the absence of any formal agreement, their common intention can be deduced objectively from their conduct;
4. in cases where it was apparent that either (a) the parties did not intend that the legal and beneficial interests be held in equal shares at the outset, or (b) the parties had changed their original intention, but it was not possible to ascertain what their actual intention was, each would be entitled to the share which the court considered `fair' having regard to the whole course of dealing between them in relation to the property; and
5. each case would turn on its own facts—financial contributions were relevant, but other factors would influence the assessment as to what shares were either intended or fair.8
In Gow v Grant,9 the Supreme Court considered what the legal principles were regarding the financial implications of a relationship breakdown between cohabitants in Scotland and, in doing so, addressed the disparity or convergence between the regimes for cohabitation, specifically section 28 of the Family Law (Scotland) Act 2006 (the 2006 Act), and marriage, particularly sections 8-10 of the Family Law (Scotland) Act 1985 (the 1985 Act). The Supreme Court held that the cohabitation regime under the 2006 Act did not seek to replicate the 1985 Act, and thus it would not be appropriate to adopt the same approach to it. However, the Supreme Court maintained that the underlying principle was one of fairness and that both Acts were designed to correct imbalances arising out of a non-commercial relationship.10 The Supreme Court indicated that the natural meaning of the phrase `in the interests of the defender' in section 28 of the 2006 Act was directed to the effect of the transaction rather than the intention with which it was entered into.11 Provided that disadvantage had been suffered in the interests of the defender to some extent, the door was open to award a capital
8 See Jones v Kernott, above n 5, para 51. 9 [2012] UKSC 29. 10 Ibid, paras 35-37. 11 Ibid, para 38. 142 Natasa Mavronicola sum.12 Lady Hale also remarked that a similar remedy was needed in England and Wales.13 The issue raised by Re T (Children)14 was the liability of a local authority to pay the costs of a party to care proceedings. The Supreme Court found that the general practice of not awarding costs in care proceedings against a party (including a local authority), in the absence of reprehensible behaviour or an unreasonable stance, should not be subject to an exception in the case of split hearings.15 The danger of depleting resources or otherwise affecting local authority functions was referred to by the Supreme Court to buttress its conclusion.16 Re S (A Child)17 addressed whether it would be contrary to the rights of a child, W, to return with his British mother to Australia under an order for his return pursuant to the Convention on the Civil Aspects of International Child Abduction (the Hague Convention),18 sought by W's Australian father. The key argument against return raised by the mother was that, based on the father's past behaviour and its impact on the mother, the return would have such an adverse effect on the mother's health as to render the situation intolerable for W. The Supreme Court found the argument persuasive. Based on Re E (Children),19 the key question to be asked was `what would happen if, with the mother, the child was returned?' If the Supreme Court concluded that, on return, the mother would suffer such anxieties that their effect on her mental health would create a situation that was intolerable for the child, then they should not be returned. In assessing this, the Supreme Court decided that it did not matter whether the mother's anxieties were reasonable or unreasonable, or subjectively or objectively founded.20 In BH21 and HH,22 decided on the same day, the Supreme Court considered
12 Ibid, para 45. 13 Ibid. 14 [2012] UKSC 36. 15 Ibid, para 44. 16 Ibid, paras 28, 41-43. 17 [2012] UKSC 10. 18 1343 UNTS 89. 19 [2011] UKSC 27. 20 Ibid, paras 27, 34. 21 BH (AP) and another v Lord Advocate and another (Scotland); KAS or H (AP) v Lord Advocate and another (Scotland) [2012] UKSC 24. 22 HH v Deputy Prosecutor of the Italian Republic, Genoa; PH v Deputy Prosecutor of the Italian Republic, Genoa; F-K (FC) v Polish Judicial Authority [2012] UKSC 25. Overview: Family Law 143 whether a number of extraditions, which could entail the potentially long-term separation of children from their parents, would amount to a disproportionate interference with private and family life under Article 8 of the ECHR. According to the Supreme Court, what was to be assessed was whether the children's best interests, which were key to Article 8, were outweighed by the strength of the considerations in favour of extradition, notably the prevention of crime. The public interest in giving effect to a request for extradition would be given great weight.23 Infouroftheappeals(BH, KAS, HH, PH)24 the Supreme Court held that the seriousness of the offences required the extradition of the parents despite the serious impact on the children. In one appeal (FK)25 the Supreme Court held that extradition would be a disproportionate interference with the mother and her children's Article 8 rights. In Humphreys v Revenue and Customs Commissioners,26 a father challenged the rule that Child Tax Credits (CTC) were payable only to the person who has `main responsibility' for the relevant children27 as being indirectly discriminatory against men, since men would rarely be allocated the main responsibility for a child. The fact that the rule was indirectly discriminatory was accepted, and the Supreme Court proceeded to consider whether such indirect discrimination was justified. The Supreme Court referred to the test in Stec,28 according to which discrimination in state benefits is justified unless it is `manifestly without reasonable foundation'.29 The Supreme Court found the test to be satisfied, noting that the main aim of the rules was to reduce child poverty. Providing for one recipient of CTC was more likely to achieve that aim than dividing it between two households. Further, CTC were provided to the main carer on the expectation that the main carer bears most of the cost of care; splitting CTC would unduly increase costs; and the CTC regime was generally justifiable as a `bright line' rule.30 In NJDBvJEG andanother(Scotland),31 theSupremeCourtdismissedafather's appeal against an order denying him contact with his son. The Supreme Court found that the relevant test, treating the welfare of the child as the paramount
23 BH, above n 21, para 49; HH, above n 22, paras 29, 140-141. 24 BH, above n 21; HH, above n 22. 25 HH, above n 22. 26 [2012] UKSC 18. 27 See Regulation 3, Child Tax Credit Regulations 2002, SI 2002/2007. 28 Humphreys, above n 26, para 15. See Stec v United Kingdom (2006) 43 EHRR 1017. 29 Humphreys, above n 26, paras 15-19. 30 Ibid, paras 26-33. 31 [2012] UKSC 21. 144 Natasa Mavronicola consideration, had been applied correctly and impartially by the sheriff deciding the issue.32 Nonetheless, the duration and cost of the particular proceedings were problematic. The Supreme Court noted the recommendations of the Report of the Scottish Civil Courts Review, indicating that the Scottish courts should make use of their existing case management powers to minimise delays and costs.33 ANS and another v ML (Scotland)34 concerned the adoption of a child without the consent of the child's biological mother, who challenged section 31 of the Adoption and Children (Scotland) Act 2007 on the ground that it was incompatible with Article 8 ECHR and therefore outside the scope of the legislative competence of the Scottish Parliament. The relevant basis for the non-consensual adoption order in this case was that `the welfare of the child otherwise requires the consent to be dispensed with' (section 31(3)(d) of the relevant statute). The mother argued that this provision was insufficiently precise so that an order on that ground did not comply with Article 8(2). However, the Supreme Court held that the meaning of the subsection was clear and the word `requires',readinlightofthewholestatute,setahighthresholdbeforeanadoption order without consent could be made. The law therefore complied with Article 8.35
32 Ibid, paras 13-14, 17-19. 33 Ibid, paras 27-34. 34 [2012] UKSC 30. 35 Ibid, paras 15-17, 30-49. DOI: 10.7574/cjicl.02.01.72 Cambridge Journal of International and Comparative Law (2)1: 145–149 (2013)
Overview: Human Rights
Bulbul Khaitan
The Supreme Court decided 17 cases related to human rights in the 2011-12 legal year. Five of those cases related to Article 6 of the European Convention on Human Rights (ECHR)1 which protects the right to a fair trial. In Gale and another v Serious Organised Crime Agency,2 the appellant's case was that the judge applied the principle of `balance of probabilities' instead of `beyond reasonable doubt' to impute criminal conduct on the appellants and hence, infringed Article 6 of the ECHR. The Supreme Court dismissed the appeal on the ground that confiscation of property could be based on evidence which satisfied the civil standard of proof.3 The Supreme Court further held that the starting point in this case was that the appellants failed to provide a legitimate explanation for possession of such contested property.4 In Ambrose v Harris; HM Advocate v G; HM Advocate v M,5 the Supreme Court observed that the correct starting point when one is considering whether the person's rights under the ECHR have been breached is to identify the moment fromwhichhewaschargedforthepurposesofArticle6(1)oftheECHR.6 The test is whether the situation of the individual was substantially affected. His position would have been substantially affected as soon as the suspicion against him was being seriously investigated and the prosecution case compiled.7 In HM Advocate v P,8 the issue before the Supreme Court was whether the prosecution could rely on evidence obtained from information disclosed during the course of a police interview with an accused person, without the accused person having had access to legal advice. The Supreme Court held that the question of whether such evidence should be admitted has to be answered by
1 Convention fortheProtection ofHuman Rightsand FundamentalFreedoms, 4 November1950, 213 UNTS 221. 2 [2011] UKSC 49. 3 Ibid, para 44 (Lord Phillips). 4 Ibid, para 55 (Lord Phillips). 5 [2011] UKSC 43. 6 Ibid, para 62 (Lord Hope). 7 Ibid. 8 [2011] UKSC 44.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 146 Bulbul Khaitan considering whether the accused would be deprived of his fundamental right to a fair trial by the leading of the evidence.9 In McGowan v B,10 the Supreme Court held that Article 6 of the ECHR is to be interpreted broadly by reading into it a variety of other rights to which the accused person is entitled, so as to give practical effect to the right of a fair trial.11 In Jude v HM Advocate; Hodgson v HM Advocate; Birnie v HM Advocate,12 the Supreme Court held that the question of fairness for the purposes of Article 6(1) of the ECHR must be examined in the light of all the facts and circumstances.13 Thefactthatthewaiverwasmadewithoutlegaladviceandwithoutreasonsbeing requestedmaybetakenintoaccountintheassessmentastowhethertheappellant understood the right that was being waived.14 Four out of the 17 cases related to the right to respect for private and family life under Article 8 of the ECHR. In HH v Deputy Prosecutor of the Italian Republic, Genoa; PH v Deputy Prosecutor of the Italian Republic, Genoa; F-K v Polish Judicial Authority,15 the Supreme Court observed that every extradition case must carefully analyse the potential Article 8 implications.16 In ANS and another v ML,17 the Supreme Court considered whether section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 was compatible with Article 8 of the ECHR. It held that the decisions made under the Adoption and Children (Scotland) Act 2007 are compatible as they have a legitimate aim of protecting the welfare of children.18 In R (on the application of Quila and another) v Secretary of State for the Home Department; R (on the application of Bibi and another) v Secretary of State for the Home Department,19 the Supreme Court dismissed the Secretary of State's appeal on the ground that the refusal to grant marriage visas to the respondents was an
9 Ibid, para 27 (Lord Hope). 10 [2011] UKSC 54. 11 Ibid, para 11 (Lord Hope). 12 [2011] UKSC 55. 13 Ibid, para 33 (Lord Hope). 14 Ibid, para 29 (Lord Hope). 15 [2012] UKSC 25. 16 Ibid, paras 31-32 (Lady Hale). In BH and another v The Lord Advocate and another; KAS or H v The Lord Advocate and another [2012] UKSC 24, the appellants argued that their extradition would be incompatible with Article 8 of the ECHR but the Supreme Court did not accept their argument,observingthattheoffencesallegedagainsttheappellantswereveryserious,attracting punishment of up to 20 years imprisonment. 17 [2012] UKSC 30. 18 Ibid, paras 38-43 (Lord Reed). 19 [2011] UKSC 45. Overview: Human Rights 147 infringement of their rights under Article 8 of the ECHR.20 Two cases involved the right to freedom of expression recognised under Article 10 of the ECHR. In Sugar (Deceased) (Represented by Fiona Paveley) v British Broadcasting Corporation (BBC) and another,21 the Supreme Court dismissed the appeal by the appellant for the disclosure of the Balen Report by the BBC, on the basis that even if information is held only partly for the purposes of journalism, artorliterature, itisoutsidethescope oftheFreedom ofInformation Act2000.22 As to the contention on behalf of the appellant that this approach would violate Article 10 of the ECHR, the Supreme Court noted that Article 10(1) cannot be construed as imposing positive obligations on a state to disseminate information of its own motion.23 In Flood v Times Newspapers Limited,24 the Supreme Court noted that there is a need to balance Article 10 and Article 8 of the ECHR and the importance of the public interest in receiving the relevant information has to be weighed against the public interest in preventing the dissemination of defamatory allegations, with the injury that this causes to the reputation of the person defamed.25 In Rabone and another v Pennine Care NHS Foundation Trust,26 the Supreme Court held that the defendant hospital was in breach of Article 2 of the ECHR where a mental health patient killed herself whilst on home release from a psychiatric unit. The hospital was under an operational duty to protect the patient's life under Article 2 of the ECHR.27 The test for the operational duty was higher than that of the common law test for negligence and was satisfied in this case as the patient was at `real and immediate' risk of committing suicide.28 In Re S (a Child),29 the Supreme Court held that determination of an appli- cation under the Hague Convention does not equate to an in-depth examination of the entire family situation and related facts under Article 8 of the ECHR, as was stated in the decision of the European Court of Human Rights in Neulinger and Shuruk v Switzerland.30 The Supreme Court further observed that it would be
20 Ibid, paras 59 (Lord Wilson) and 80 (Lady Hale). 21 [2012] UKSC 4. 22 Ibid, paras 67 (Lord Phillips), 75 (Lord Walker), 104 (Lord Brown) and 111 (Lord Mance). 23 Ibid, para 89 (Lord Brown). 24 [2012] UKSC 11. 25 Ibid, para 44 (Lord Phillips). 26 [2012] UKSC 2. 27 Ibid, para 34 (Lord Dyson). 28 Ibid, paras 36-37 (Lord Dyson). 29 [2012] UKSC 10. 30 [2011] 1 FLR 122; ibid, para 37 (Lord Wilson). 148 Bulbul Khaitan most unlikely that a proper application of the Hague Convention would infringe the rights of any members of the family under Article 8 of the ECHR.31 In Humphreys v The Commissioners for Her Majesty's Revenue and Customs,32 the appellant was refused Child Tax Credit (CTC). He argued that the legislative scheme breached Article 14 read with Article 1 of the First Protocol to the ECHR in that it indirectly discriminated against men because, on the whole, fathers are more likely than mothers to have secondary, but nonetheless significant, responsibility for the care of their children. The Supreme Court found the CTC rule of `no splitting' and consequential indirect discrimination, if any, to be reasonable and justified on assessment on policy grounds.33 The decision is discussed in more detail in this volume in `Overview: family law' and `Overview: tax law'. In Lukaszewski v The District Court in Torun, Poland; Pomiechowski v District Court of Legunica 59-220 Poland; Rozanski v Regional Court 3 Penal Department Poland; R (on the application of Halligen) v Secretary of State for the Home Depart- ment,34 the issue raised was about the consequence of non-compliance with the shortandinflexibletimelimitincludedintheExtraditionAct2003. TheSupreme Court gave a purposive interpretation of the statute and held that Parliament did not intend potential injustice which can result from absolute and inflexible time limits for appeals.35 Thus, the Supreme Court allowed the appellants to appeal out of time since they did all they could to notify the appeal on time. In W (Algeria) and BB (Algeria) v Secretary of State for the Home Department; PP (Algeria) v Secretary of State for the Home Department (formerly VV (Jordan) and PP (Algeria) v Secretary of State for the Home Department); Z (Algeria), G (Algeria), U (Algeria) and Y (Algeria) v Secretary of State for the Home Department,36 the Supreme Court upheld the Special Immigration Appeals Commission's right to make an order for an absolute and irreversible guarantee of total confidentiality in respect of a witness's identity and evidence before they were disclosed to the Secretary of State. The Supreme Court further observed that a number ofrecent international instruments are replete with statements urging states to ensure that witnesses are protected against ill-treatment or intimidation, particularly in a human rights
31 Re S, above n 29, para 37. 32 [2012] UKSC 18. 33 Ibid, paras 28-33 (Lady Hale). 34 [2012] UKSC 20. 35 Ibid, para 39 (Lord Mance). 36 [2012] UKSC 8. Overview: Human Rights 149 context.37 In RT (Zimbabwe) and others v Secretary of State for the Home Department; KM (Zimbabwe) v Secretary of State for the Home Department,38 the Supreme Court ruled that the principle upheld in HJ (Iran) v Secretary of State for the Home Department39 applies to applicants who claim asylum on the grounds of a well-founded fear of persecution for reasons of lack of political belief.40 The Supreme Court observed that there was no support in any of the human rights jurisprudence for a distinction between the conscientious nonbeliever and the indifferent nonbeliever, any more than there is support for a distinction between the zealous believer and the marginally committed believer.41 All are equally entitled to human rights protection and to protection against persecution under the Refugee Convention.42
37 Ibid, para 15 (Lord Brown). 38 [2012] UKSC 38. 39 [2010] UKSC 31. 40 RT, above n 38, para 52 (Lord Dyson). 41 Ibid, para 45 (Lord Dyson). 42 Ibid. DOI: 10.7574/cjicl.02.01.73 Cambridge Journal of International and Comparative Law (2)1: 150–153 (2013) Overview: Immigration Law
Mary Roberts
In the 2011-12 legalyear, the United Kingdom Supreme Courtdecided seven cases relating to immigration. R (on the application of Quila and another) v Secretary of State for the Home Department; R (on the application of Bibi and another) v Secretary of State for the Home Department1 concerned Rule 277 of the Immigration Rules. Introduced on 27 November2008withtheobjectiveofdeterringforcedmarriages, Rule277barred the granting of entry clearance or leave to remain in the United Kingdom where either the applicant or the normally resident spouse was younger than 21 years of age. The Supreme Court upheld the Court of Appeal's earlier judgment, in which the majority held that the Secretary of State's application of Rule 277 to deny marriage visas to the respondents was unlawful as it breached their rights under Article 8 of the European Convention on Human Rights (ECHR).2 The majority of the Supreme Court held that the Secretary of State's decisions made pursuant to Rule 277 were not a proportionate response to the problem of forced marriage. The Supreme Court noted both the absence of conclusive evidence that Rule 277 had its intended effect of deterring forced marriage and the scale and severity of its impact on non-forced marriages in making its decision.3 W (Algeria) and BB (Algeria) v Secretary of State for the Home Department; PP (Algeria) v Secretary of State for the Home Department (formerly VV (Jordan) and PP (Algeria) v Secretary of State for the Home Department); Z (Algeria), G (Algeria), U (Algeria) and Y (Algeria) v Secretary of State for the Home Department4 concerned the appeal mechanism established by the Special Immigration Appeals Commission Act 1997, which allowed where necessary for `closed material procedures'. One of theappellants,allofwhomwerefacingdeportationtoAlgeriaonnationalsecurity grounds, wished to adduce evidence from a witness (W), that the appellants were likely to be subjected to torture or other ill-treatment in Algeria, despite the Algerian government's assurances to the contrary. The question before
1 [2011] UKSC 45. 2 ConventionfortheProtectionofHuman RightsandFundamentalFreedoms, 4November1950, 213 UNTS 221. 3 See above n 1, paras 73-80 (Lady Hale). 4 [2012] UKSC 8.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. Overview: Immigration Law 151 the Supreme Court was whether it was open to Special Immigration Appeals Commission (SIAC) to make an order providing for an absolute and irreversible guarantee of total confidentiality in respect of W's identity and evidence before it was disclosed to the Secretary of State. The Supreme Court overturned the judgment of the Court of Appeal and unanimously allowed the appeal. It held that the SIAC had the power to make such orders, but such powers should be used sparingly, allowing for flexibility.5 In R (on the application of ST (Eritrea)) v Secretary of State for the Home Department,6 the Supreme Court considered whether Article 32 of the 1951 Refugee Convention applied only to refugees who had been given the right under the domestic law of the contracting state to remain within that state's territory or whether the words `lawfully present in the territory' might be interpreted more broadly. The Supreme Court unanimously dismissed the appeal, holding that `lawfully' `must be taken to refer to what is to be treated as lawful according to the domestic laws of the contracting state'.7 In the case at hand, `lawfulness' was definedbysection11(1)oftheImmigrationAct1971underwhichtheappellantwas not deemed to have entered the UK as she was temporarily admitted. HH v Deputy Prosecutor of the Italian Republic, Genoa; PH v Deputy Prosecutor of the Italian Republic, Genoa; F-K v Polish Judicial Authority8 are a series of joined cases concerning the proportionality of extradition where the rights of children under Article 8 of the ECHR are engaged. The Supreme Court considered the following question:
Where, in proceedings under the Extradition Act 2003, the article 8 rights of children of the defendant or defendants are arguably engaged, how should their interests be safeguarded, and to what extent,ifatall,isitnecessarytomodifytheapproachoftheSupreme Court in Norris v Government of the United States of America (No 2)9 in light of ZH (Tanzania)10?11
The Supreme Court held that the best interests of children, while a primary con- sideration as recognized in ZH (Tanzania), can be outweighed by the cumulative
5 Ibid, paras 19-21 (Lord Brown). 6 [2012] UKSC 12. 7 Ibid, para 49 (Lord Hope). 8 [2012] UKSC 25. 9 [2010] UKSC 9. 10 [2011] UKSC 4. 11 See above n 8, para 2 (Lady Hale). 152 Mary Roberts effect of other considerations. The Supreme Court held that `it is likely that the public interest in extradition will outweigh the article 8 rights of the family un- less the consequences of the interference with family life will be exceptionally severe'.12 The central question in R (on the application of Munir and another) v Secretary of State for the Home Department13 was whether statements by the Secretary of State of her policy regarding the granting of concessions outside the immigration rules constituted a `practice to be followed' within the meaning of section 3(2) of the Immigration Act 1971, which requires the Secretary of State to lay such statements before Parliament. In December 2008, the Secretary of State revoked Deportation Policy 5/96, the general presumption that deportation would not proceed where a child had from birth or from an early age accumulated seven or more years of continuous residence in the UK, without consulting Parliament. The Supreme Court dismissed the appeal. It rejected the Secretary of State's contention that the power to make immigration rules under the 1971 Act was an exercise of the Royal Prerogative. Rather, the Act itself conferred power on the Secretary of State and she is therefore obligated to lay concessionary policies that constitute rules to be followed before Parliament. In the case of Deportation Policy 5/96, the Supreme Court held that the policy was amply flexible that it did not constitute a rule to be followed and therefore did not fall within the scope of section 3(2).14 In R (on the application of Alvi) v Secretary of State for the Home Department,15 the Supreme Court clarified the meaning of the word `rule' for the purposes of section 3(2) of the Immigration Act 1971 in considering whether the Secretary of State's reference in paragraph 82(a)(i) of Appendix A of the Immigration Rules to `the United Kingdom Border Agency's list of skilled occupations' was sufficient to satisfy the requirements of section 3(2) of the 1971 Act. The Supreme Court reiterated its rejection of the Secretary of State's contention that her power to make immigration rules constituted an exercise of the Royal Prerogative. The Supreme Court held that it ought to be possible to identify from an examination of the material in question, taken in its whole context, whether or not it is of the character of a rule or is just information, advice or guidance as to how the requirements of a rule may be met in particular cases.16 Any requirement which,
12 Ibid, para 8 (Lady Hale). 13 [2012] UKSC 32. 14 Ibid, para 45 (Lord Dyson). 15 [2012] UKSC 33. 16 Ibid, para 63 (Lord Hope). Overview: Immigration Law 153 if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). The Secretary of State was therefore obligated to lay the statement in in paragraph 82(a)(i) of Appendix A of the Immigration Rules that all qualifying jobs must be skilled at N/SVQ 3 or above before Parliament. The Supreme Court dismissed the appeal.17 In RT (Zimbabwe) and others v Secretary of State for the Home Department; KM (Zimbabwe) v Secretary of State for the Home Department,18 the issue before the Supreme Court was whether a claim for asylum made by an individual who has no political views could be defeated on the basis that that individual would avoid persecution by feigning political allegiance to the political regime. The Supreme Court held that there are no hierarchies of protection amongst the Refugee Convention reasons for persecution. The right to freedom of thought, opinion and expression protects non-believers as well as believers and extends to the freedom not to hold and not to express opinions. A refugee claim, therefore, where there is a risk of persecution on the grounds of imputed political opinion or neutrality, may succeed.19
17 Ibid, paras 66 (Lord Hope), 102 (Lord Dyson), 115 (Lord Walker). 18 [2012] UKSC 38. 19 Ibid, paras 53-55 (Lord Dyson). DOI: 10.7574/cjicl.02.01.74 Cambridge Journal of International and Comparative Law (2)1: 154–156 (2013)
Overview: International Law
Mary Roberts
In the 2011-12 legal year, the United Kingdom Supreme Court decided six cases related to international law. In ReS(aChild),1 theSupremeCourtconsideredanappealbyamotheragainst an order of the Court of Appeal that she immediately return her child, aged two, to Australia, made pursuant to Article 12 of the Hague Convention of the Civil Aspects of International Child Abduction (Hague Convention) and to section 1(2) of the Child Abduction and Custody Act 1985, which gives effect to the Hague Convention in domestic law. The issue before the Supreme Court Justices was whether they could decline to order the child's return to Australia on the basis of nothing more than disputed allegations of domestic abuse made by the mother. The Supreme Court also elaborated on the correct approach to the subjective perception of risk held by a parent and rejected the Court of Appeal's contention that a parent's anxieties must be realistically and reasonably held. Rather, a defenceunderArticle13(b)oftheHagueConventioncouldbemadeonthebasisof the abducting parent's subjective anxieties where those anxieties would be likely to destabilise the parenting of that child to the point at which the child's situation would become intolerable. The Supreme Court unanimously allowed the appeal. In R (on the application of ST (Eritrea)) v Secretary of State for the Home Department,2 the Supreme Court considered whether Article 32 of the 1951 Refugee Convention applied only to refugees who had been given the right under the domestic law of the contracting state to remain within that state's territory or whether the words `lawfully present in the territory' might be interpreted more broadly. The Supreme Court unanimously dismissed the appeal, holding that `lawfully' `must be taken to refer to what is to be treated as lawful according to the domestic laws of the contracting state'.3 In the case at hand, `lawfulness' was defined by section 11(1) of the Immigration Act 1971, under which the appellant was not deemed to have entered the UK as she was temporarily admitted.
1 [2012] UKSC 10. 2 [2012] UKSC 12. 3 Ibid, para 49 (Lord Hope).
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. Overview: International Law 155
In Assange v The Swedish Prosecution Authority,4 the Supreme Court deter- mined that Julian Assange could be extradited to Sweden to face charges of sexual assault and rape. The question before the Supreme Court was whether a public prosecutor constituted a `judicial authority' (as required under Article 6 of the Council of the European Union Framework Decision of 13 June 2002 on the Eu- ropean Arrest Warrant (EAW) and the surrender procedures between member states,5 implementedintheUnitedKingdominPart1oftheExtraditionAct2003) and could thereby validly issue an EAW. The Supreme Court found by a majority of five to two that a public prosecutor was a judicial authority within the mean- ing of the Act. The majority determined that the development of the Framework Decision and subsequent state practice indicated that `judicial authority' was to be interpreted broadly. The Supreme Court determined that the same meaning should be applied to the words `judicial authority' in the Extradition Act 2003, as there exists a strong presumption in favour of interpreting statutes in accordance with the United Kingdom's international obligations.6 In Perry and others v Serious Organised Crime Agency; Perry and others No 2 v Serious Organised Crime Agency,7 the Supreme Court curtailed the ability of the Serious Organised Crime Agency (SOCA) to freeze the assets of a person who had been convicted of fraud abroad. The Supreme Court ruled that Part 5 of the Proceeds of Crime Act 2002, which allows the court to make a civil recovery order in respect of property which is, or represents, property obtained through criminal conduct, did not grant the English courts the jurisdiction to freeze assets located outside of the UK. In RT (Zimbabwe) and others v Secretary of State for the Home Department; KM (Zimbabwe) v Secretary of State for the Home Department,8 the issue before the Supreme Court was whether a claim for asylum made by an individual who has no political views could be defeated on the basis that that individual would avoid persecution by feigning political allegiance to the political regime. The Supreme Court held that there are no hierarchies of protection amongst the Refugee Convention reasons for persecution. The right to freedom of thought, opinion and expression protects non-believers as well as believers and extends to the freedom not to hold and not to express opinions. A refugee claim, therefore,
4 [2012] UKSC 22. 5 CouncilFrameworkDecisionof13June2002ontheEuropeanarrestwarrantandthesurrender procedures between Member States (2002/584/JHA) OJ L 190. 6 See above n 4, para 122 (Lord Dyson). 7 [2012] UKSC 35. 8 [2012] UKSC 38. 156 Mary Roberts where there is a risk of persecution on the grounds of imputed political opinion or neutrality may succeed.9 In SerVaas Incorporated v Rafidian Bank and others,10 the Supreme Court clarified the approach of the English courts to the commercial exception to the doctrine of restrictive state/sovereign immunity. In this case, the appellant, SerVaas Incorporated, sought enforcement of a Third Party Debt Order against thedebtspayablebytherespondent,Rafidian,tothestateofIraq. Iraqarguedthat the application ought to be dismissed because of state immunity and because the outstanding debt was not used or intended to be used for a commercial purpose. The Supreme Court dismissed the appeal, holding that the origin of the property was not relevant to the consideration of whether the property was `in use for commercial purpose' on the basis of the language of section 13(4) of the State Immunity Act 1978 as well as case law.
9 See above n 7, paras 53-55 (Lord Dyson). 10 [2012] UKSC 40. DOI: 10.7574/cjicl.02.01.75 Cambridge Journal of International and Comparative Law (2)1: 157–159 (2013)
Overview: Local Government Philippe Boisvert
The Supreme Court decided six cases involving local government issues in the 2011-12 legal year. In Re T (Children),1 the Supreme Court heard a case relating exclusively to costs in child care proceedings. At issue were allegations of sexual abuse made by a local authority against a number of individuals including the children's father and their grandparents. The grandparents were exonerated by the fact-finding judge and sought an award of costs against the local authority to cover the substantialcostoftheirdefence. TheSupremeCourtheld thatdespiterecentcase law from the Court of Appeal to the contrary,2 the principle remained that costs were not awarded against a party in child care cases unless that party's conduct was reprehensible. This principle does not suffer exceptions in cases of separate fact-finding hearings. The local authority is under a duty in respect of the care of children which sometimes demands placing allegations before courts. Where these allegations are reasonably made, even if they later prove unfounded, the local authority should not be liable for costs. In Solihull Metropolitan Borough Council v Hickin,3 a divided Supreme Court consideredtheoperationoftheHousingAct1985withrespecttothetransmission of secure tenancies held by joint tenants. Mr and Mrs Hickin were joint tenants of a secure tenancy over a property owned by Solihull Metropolitan Borough Council. However, at the time of her death, Mrs Hickin and her daughter were the sole occupants of the house, as Mr Hickin had been away for 27 years. The majorityoftheSupremeCourtheldthattheprovisionsoftheActdidnotdisplace Mr Hickin's common law right of survivorship in favour of his daughter, despite his prolonged absence and his daughter's occupation of the property. It did not matter that, by virtue of Mr Hickin's absence, the tenancy would cease to be secure. The issue of whether a local authority could take financial considerations into account when making decisions was addressed in two cases. In The Health
1 [2012] UKSC 36. 2 Notably, Sutton London Borough Council v Davis (No 2) [1995]1AllER65and Re J (Children) [2009] EWCA Civ 1350. 3 [2012] UKSC 39.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 158 Philippe Boisvert and Safety Executive v Wolverhampton City Council,4 the Supreme Court held that local planning authorities could take into account the cost of compensation when deciding whether to issue revocation orders under the Town and Country Planning Act 1990. At issue in the case was Wolverhampton City Council's decision to disregard advice received from the Health and Safety Executive (HSE) with regard to the development of student accommodation, which prompted the HSE to initiate judicial review proceedings. The Supreme Court stated broadly that as custodian of public funds, authorities must generally have regard to matters such as the availability of funds, although the weight of that factor will vary according to the circumstances. In R (on the application of KM) v Cambridgeshire County Council,5 the same question arose, but in the context of the duty that Cambridgeshire County Council owed to a disabled man, pursuant to the Chronically Sick and Disabled Persons Act 1970. The case involved a dispute between the family of a profoundly disabled man and the council, with regard to the compensation amount owed to him. In the end, the outcome of the appeal was determined on the particular facts of the case. While the conduct of the council in its determination of the appropriate amount was severely criticised by the Supreme Court, it did not modify the amount of the award that had initially been offered. While invited to do so, the Supreme Court did not address the question of whether the council could consider competing demands on its budget, as it was not necessary to determine the case. Aberdeen City Council v Stewart Milne Group Limited6 concerned the interpre- tation of a contract for the purchase of land to be developed concluded between Aberdeen City Council and a corporation. The parties disputed whether a cer- tain contractual uplift was owed to the council under the contract as a result of the further transfer of the land to a second company within the same group. The Supreme Court considered the intention of the parties and concluded that the uplift was owed to the council, even if the contract was silent on the scenario of non-arm's length resale of the land. In G Hamilton (Tullochgribban Mains) Limited v The Highland Council and another,7 the Supreme Court reviewed the decision of a planning authority to classify an old mineral site owned by the second respondent as `dormant'. The appellant was a company owning farmland in the vicinity which was governed
4 [2012] UKSC 34. 5 [2012] UKSC 23. 6 [2011] UKSC 56. 7 [2012] UKSC 31. Overview: Local Government 159 by the same planning permission as the mineral site. It objected to a letter sent by the planning authority stating the conditions imposed and enclosing a map delineating the land at issue.8 The Supreme Court rejected the appeal, indicating that had permission for the appeal been required, it would have not granted it, as the case did not raise any point of law of general importance and the impugned decisions were plainly correct.9
8 Ibid, paras 15-18. 9 Ibid, para 29. DOI: 10.7574/cjicl.02.01.76 Cambridge Journal of International and Comparative Law (2)1: 160–164 (2013) Overview: Private Law
Lawrence Li
In the legal year 2011-12, the Supreme Court gave judgments in 18 cases which had a private law element, an increase from the number of similar judgments delivered last year. The question in Berrisford v Mexfield Housing Co-operative Ltd,1 one of the Supreme Court's most discussed judgments, was the interpretation of uncertain terms in a lease agreement. Under one such clause, the tenant had to give a one-month notice to terminate the lease while the landlord could terminate the lease by fulfilling other conditions. The Supreme Court, reversing the decisions of both lower courts, held unanimously that such an arrangement indicated an intention contrary to that of a monthly lease, even though the lease was described as being `from month to month'.2 Thus, the lease was for an uncertain term and would have been a tenancy for life,3 but for the Law of Property Act 1925 section 149(6), which converted the term to 90 years.4 Tenancy was also the subject matter in Solihull Metropolitan Borough Council v Hickin.5 The case concerned a joint secure tenancy under the Housing Act 1985 Part IV. The majority of the Supreme Court held that the law of joint tenancy mandated the conclusion that the condition of death of `a secure tenant' under section 89 of the 1985 Act was not satisfied if there remained one surviving joint tenant.6 Therefore, the daughter in this case could not succeed her mother in a joint tenancy under section 89 when her father, being the other joint tenant, was alive. In Jones v Kernott,7 another case concerning land interest, the Supreme Court, following the decision in Stack v Dowden,8 made clear that, in the absence of express declaration, the extent of interest in a matrimonial home financed jointly
1 [2011] UKSC 52. 2 Ibid, paras 15-20. 3 Ibid, paras 33-34, 42. 4 Ibid, paras 116-118. 5 [2012] UKSC 39. 6 Ibid, paras 11-12, 25. 7 [2011] UKSC 53. 8 [2007] UKHL 17.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. Overview: Private Law 161 by a couple is not ascertained by a resulting trust, but by the parties' conduct.9 The majority of the Supreme Court inferred from the couple's conduct in this case that their intention had changed when they cashed in a joint policy after acquiring the property and shared the proceeds.10 A new precedent was set for shipping law in Petroleo Brasileiro SA v ENE Kos 1 Ltd.11 The shipowners in this case were allowed to recover costs incurred for discharging the charterers' cargo after the charterparty was lawfully withdrawn, as they were bailees of the cargo until it was discharged.12 The Supreme Court, with Lord Mance dissenting,13 also held that the scope of an employment and indemnity clause depended on the owners' obligations under the charterparty and the parties' intention, rather than foreseeability or remoteness of the damage.14 Further guidance from the Supreme Court may, however, be necessary in defining the Fairchild exception in causation. In Ministry of Defence v AB,15 which primarily concerned the Limitation Act 1980, Lord Phillips stated that causation could not be established by merely proving that exposure to fallout radiation might have increased the risk of contracting injuries.16 This was consistent with the Supreme Court's decision in Sienkiewicz v Greif Ltd17 that causing an increase in risk could not be equated to causing the injury. This may be compared with the Supreme Court's majority judgment in BAI (Run Off) Ltd (In Scheme of Arrangement) v Durham,18 to which Lord Phillips dissented. The employees in thatcase were exposed to asbestos dustand subsequently developed mesothelioma after the employers' liability insurance period. The majority held that while risk could not be equated to injury, the cause of action continued to exist because the employees were exposed to asbestos, which might have led to mesothelioma, and did in fact occur.19 The employers were thus responsible for the employees' mesothelioma under the Compensation Act 2006.20 As the words
9 [2011] UKSC 53, paras 25, 51, 53. 10 Ibid, para 48. 11 [2012] UKSC 17. 12 Ibid, para 28. 13 Ibid, para 35. 14 Ibid, paras 11-12. 15 [2012] UKSC 9. 16 Ibid, para 157. 17 [2011] UKSC 10. 18 [2012] UKSC 14. 19 Ibid, para 65. 20 Ibid, paras 66, 73. 162 Lawrence Li
`contracted' and `sustained' in the employers' liability insurance policies looked to the causation rather than the time of manifestation,21 the policies responded to the employers' claims. While being significant for its constitutional implication, AXA General Insur- ance Ltd, Petitioners22 also impacted the insurance industry, wherein the Supreme Court upheld the validity of the Damages (Asbestos-related Conditions) (Scot- land) Act 2009.23 The insurers should have anticipated their burden of liability to increase with subsequent changes in law after the policies were issued.24 Rabone v Pennine Care NHS Foundation Trust25 confirmed that Article 2 of the European Convention on Human Rights26 imposes an operational duty on an NHS Trust to take reasonable steps in protecting vulnerable psychiatric patients from a `real and immediate risk' of suicide.27 The Trust was therefore liable for the suicide of a patient while the patient was on authorised home leave. This was notwithstanding the fact that she was voluntarily admitted, as she would have been detained under the Mental Health Act 1983 in any event.28 In another case involving a public authority, Aberdeen City Council v Stewart Milne Group Ltd,29 the Supreme Court illustrated how a contractual term could be implied to give effect to the parties' `unspoken intention'. The Supreme Court interpreted an uplift clause in favour of the local authority that its share of profit in a contract of sale for land should be based on open market value. This interpretation was consistent with the other contractual terms and preserved the purpose of the particular clause;30 the fact that such an interpretation made good commercial sense was `simply a makeweight'.31 On the other hand, commercial sense is important to the interpretation of a contractual term which bears more than one possible meaning. In Rainy Sky SA v Kookmin Bank,32 a refund guarantee was defined as `all such sums due', which
21 Ibid, paras 49-50. 22 [2011] UKSC 46. 23 Ibid, paras 41, 52. 24 Ibid, paras 38, 95, 128, 133. 25 [2012] UKSC 2. 26 ConventionfortheProtectionofHuman RightsandFundamentalFreedoms, 4November1950, 213 UNTS 221. 27 Above n 25, para 34. 28 Ibid. 29 [2011] UKSC 56. 30 Ibid, para 17. 31 Ibid, para 22. 32 [2011] UKSC 50. Overview: Private Law 163 might or might not cover pre-delivery instalments paid prior to an insolvency event. The Supreme Court agreed that commercial common sense required such a guarantee to cover an insolvency event and found against the guarantor bank.33 Oracle America Inc (formerly Sun Microsystems Inc) v M-Tech Data Ltd34 concerned intellectual property and competition law, in particular the right to controlthefirstmarketingofproductswithtrademarksintheEEA.TheSupreme Court unanimously held that the appellant was entitled to restrict the respondent from importing into the EEA hard disks sold to the respondent in the USA under Article 5.1(a) of the Trade Mark Directive,35 as the appellant did not exhaust its right under Article 7 of the Directive, for the hard disks had never been sold within the EEA.36 Moving to another aspect of intellectual property law, the Supreme Court held in Human Genome Sciences Inc v Eli Lilly and Company37 that the appellant's EuropeanpatentonbiologicalmaterialshouldnotberevokedwhentheTechnical Board ofAppealofthe European PatentOffice has adopted a consistentapproach and upheld it under Article 57 of the European Patent Convention 2000. Consequently, it requires `very unusual' facts for a national court to depart from such a consistent approach.38 Lord Neuberger further summarised fifteen principles from the Board's approach to Article 57 in relation to biological material.39 Intellectual property was also the issue in Phillips v Mulcaire,40 but it was about the meaning of that term under the Senior Courts Act 1981 section 72. The Supreme Court held that `other intellectual property' under section 72(5) shall include commercially confidential information due to the express reference to `technical or commercial information'.41 The defendant, who was a private investigator engaged by a newspaper publisher, had his right against self-incrimination denied by virtue of that section as he had intercepted the plaintiff's voicemail messages containing clients' confidential commercial information.
33 Ibid, paras 41-43. 34 [2012] UKSC 27. 35 Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the member states relating to trade marks. 36 Above n 34, para 25. 37 [2011] UKSC 51. 38 Ibid, para 87. 39 Ibid, para 107. 40 [2012] UKSC 28. 41 Ibid, paras 20, 32. 164 Lawrence Li
In another case that should interest the media, the Supreme Court reviewed the Reynolds privilege as a defence to defamation in Flood v Times Newspapers Ltd.42 It was held that the Reynolds privilege attached to a newspaper article, which named an officer under investigation for bribery, as it satisfied the test of `responsible journalism'.43 Thetestrequiresabalancetobestruckbetweenpublic interest in the publication's subject matter and the harm to the claimant should the publication prove to be untrue.44 The journalist is to consider the full range of the meaning of the publication,45 as well as verify the publication in order to reasonably satisfy himself that the publication is true.46 Three cases shed light on different aspects of planning permission. In Tesco Stores Ltd v Dundee City Council, the petitioner failed to challenge successfully the planning authority's grant of planning permission to its competitor as the planning authority was justified in exercising its judgement to resolve conflicts between principles in the development plan.47 The petitioner in Health and Safety Executive v Wolverhampton City Council also failed to challenge successfully the planning authority's decision not to modify a grant for building a student residence near a site used for storage of liquefied petroleum gas, as compensation to the developer affected by the modification was also one of the material considerations the planning authority could consider in its decision-making.48 Finally, in G Hamilton (Tullochgribban Mains) Ltd v Highland Council, the Supreme Court held that revising the `first list' under the Town and Country Planning (Scotland) Act Schedule 949 was preliminary and did not strike down a valid existing planning permission.50 It was also worth noting that the Supreme Court in Anderson v Shetland Islands Council,51 deciding on security for appeal costs, handled a petition against local authorities for their omission of statutory duties in conducting road improvement works, which affected the stability of the petitioner's house. A parallel nuisance action was pending in the Court of Session.
42 [2012] UKSC 11. 43 Ibid, para 99. 44 Ibid, para 30. 45 Ibid, para 51. 46 Ibid, para 71. 47 [2012] UKSC 13, paras 18-19. 48 [2012] UKSC 34, para 26. 49 [2012] UKSC 31, para 4. 50 Ibid, para 27. 51 [2012] UKSC 7. DOI: 10.7574/cjicl.02.01.81 Cambridge Journal of International and Comparative Law (2)1: 165–167 (2013) Overview: Tax Law
Ana Júlia Maurício
Three cases concerning tax law came before the Supreme Court in the 2011-12 legal year. R (on the application of Davies and another)v The Commissioners for Her Majesty's Revenue and Customs1 involved the issue of assessing whether the `Residents and non-residents—liability to tax in the United Kingdom' booklet (IR20), published by the Inland Revenue,2 `on its proper construction', contained a more favourable interpretation of the circumstances in which an individual becomes non-resident and not ordinarily resident in the UK than did the ordinary law, and whether the appellants had a legitimate expectation that such interpretation would be applied to the determination of their status for tax purposes.3 The Supreme Court dismissed both appeals by a majority.4 First, the Supreme Court held that the proper interpretation of the IR20 did not corroborate the appellants' contentions.5 This was because, despite the lack of clarity regarding how to achieve non-residence (which, alternatively, could in itself discard any legal effect from being extracted from it),6 the IR20 as a whole provided the `ordinarily sophisticated taxpayer' with the information that a `multifactorial evaluation of his circumstances' was necessary.7 Such circumstances included: whether the taxpayer had to `leave' the UK permanently, indefinitely or for full-time employment; whether he had to do more than to take up residence abroad; whether he had to cease to keep his `usual residence' in the UK; whether any subsequent returns were merely `visits'; and whether any `property' kept in the UK had been used for the sole purpose of such visits and not as a place of residence.8 Secondly, the Supreme Court held that there was not sufficient
1 [2011] UKSC 47. The full title of the case is R (on the application of Davies and another) v The Commissioners for Her Majesty's Revenue and Customs; R (on the application of Gaines-Cooper) v The Commissioners for Her Majesty's Revenue and Customs. 2 Now HM Revenue and Customs. 3 Above n 1, para 1, emphasis in original. 4 Ibid, paras 69-104 (Lord Mance, diss). 5 Ibid, paras 45, 64. 6 Ibid, para 47. 7 Ibid, para 45. 8 Ibid.
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. 166 Ana Júlia Maurício evidence of a settled practice by the Inland Revenue concerning how the IR20 was applied, as this required clear evidence of an `unambiguous', `widespread', `well-established' and `well-recognised' practice which amounted to a specific commitment of treatment conforming to it.9 The main issue in Humphreys v The Commissioners for Her Majesty's Revenue and Customs10 concerned whether the indirect discrimination against fathers regarding Child Tax Credit (CTC), which was only payable to one person per child, was justified, or whether the refusal of CTC to a father who looked after his children for three days a week was incompatible with the European Convention on Human Rights.11 CTC is a single tax credit payable in respect of each child administered by HM Revenue and Customs.12 The Supreme Court analysed whether the `no-splitting' rule was a justified discrimination between majority and minority shared carers, taking into account the test of the European Court of Human Rights in Stec v United Kingdom,13 where it was held that such discrimination was appropriate in the context of state benefits.14 The test was essentially that a difference of treatment was discriminatory if it did not have an objective and reasonable justification.15 Nevertheless, there was a wide margin of appreciation regarding general measures of economic and social strategy, referring to the `manifestly without reasonable foundation' test.16 The Supreme Court concluded that the discrimination was justified for a number of reasons. First, the policy's main objective was to reduce child poverty, and providing support to only one household would facilitate this.17 Second, it was reasonable for the state to consider that the `no-splitting' rule promoted effectiveness in supporting the household where the child principally lived.18 Third, dividing CTC between carers would impose unnecessary increased administrative complexities and costs.19 Fourth, the `no-splitting' approach
9 Ibid, paras 49, 58. 10 [2012] UKSC 18. 11 ConventionfortheProtectionofHuman RightsandFundamentalFreedoms, 4November1950, 213 UNTS 221. 12 Above n 10, para 4. 13 [2006] 43 EHRR 1017. 14 Above n 10, para 15. 15 Above n 13, para 51. 16 Ibid, para 52. 17 Above n 10, para 28. 18 Ibid, para 29. 19 Ibid. Overview: Tax Law 167 related to the aim of shifting towards a `seamless tax credit system'.20 Fifth, it was reasonable for the state to address its support for children and families as a separate issue from the way children spent their time between carers.21 The Supreme Court consequently unanimously dismissed the appeal. Test Claimants in the Franked Investment Income Group Litigation v Commis- sioners of Inland Revenue22 involved various issues related to the tax treatment of dividends received by UK-resident companies from non-resident subsidiaries in comparison with the treatment of dividends received from subsidiaries within wholly UK-resident groups of companies.23 Apart from the main issue relating toEU law (examinedinthisvolumeinthe`Overview: Europeanlaw'article)three tax issues were involved. First, the Supreme Court, unanimously allowing the appealon this issue, held that the restitution and damages remedies sought by the appellants in respect of corporation tax paid under section 18 of the Income and Corporation Taxes Act 1988 were not excluded by virtue of the provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970. This was because section 33, if not considered to impliedly be an exclusive provision, could be interpreted in conformity with EU law.24 Secondly, the Supreme Court decided that the extension to the limitation period under section 32(1)(c) of the Limitation Act 1980 shouldnotapplytoaclaim fora Woolwich restitution remedy,25 and that the interpretation of `an action for relief from the consequences of a mistake' should not be expanded.26 Thirdly, it sustained that the Woolwich restitution remedy was not limited to tax which was required by the Inland Revenue. It could also encompass all sums paid to a public authority in response to and sufficiently linked to an apparent statutory requirement to pay tax which was not lawfully due.27 These two latter issues were, therefore, unanimously dismissed.
20 Ibid, para 30. 21 Ibid, para 31. 22 [2012] UKSC 19. 23 Income and Corporation Taxes Act 1988 s 18; ibid, para 2. 24 Above n 22, paras 119, 205. 25 Claim for restitution of tax unlawfully demanded: ibid, para 5. 26 Ibid, paras 62, 186. 27 Ibid, paras 79, 174. DOI: 10.7574/cjicl.02.01.600 Cambridge Journal of International and Comparative Law (2)1: 168–169 (2013)
Appendix A: Composition of the Supreme Court
Composition of the Court on 1 October 2011
President of the Supreme Court Lord Phillips of Worth Matravers
Deputy President of the Supreme Court Lord Hope of Craighead
Justices of the Supreme Court Lord Walker of Gestingthorpe Baroness Hale of Richmond Lord Brown of Eaton-under-Heywood Lord Mance Lord Kerr of Tonaghmore Lord Clarke of Stone-cum-Ebony Lord Dyson Lord Wilson of Culworth
Appointments to the Court during the 2011–12 legal year
Lord Sumption 11 January 2012—Assumed Office
Lord Reed 6 February 2012—Assumed Office
Lord Carnwath of Notting Hill 15 May 2012—Assumed Office
Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License. Composition of the Supreme Court 169
Offices vacated during the 2011-12 legal year
Lord Brown of Eaton-under-Heywood 9 April 2012—Retired
Lord Phillips of Worth Matravers 30 September 2012—Retired
Lord Dyson 30 September 2012—Resigned; appointed Master of the Rolls 1 October 2012 DOI: 10.7574/cjicl.02.01.601 Cambridge Journal of International and Comparative Law (2)1: 170–175 (2013) Appendix B: Statistics
Table 1: General Statistics
2011–12 2010–11 Case Volume Totalnumberofjudgmentshandeddown 57(100%) 58(100%) —MichaelmasTerm2011 18(31.58%) 18(31.03%) —HilaryTerm2012 13(22.81%) 16(27.59%) —EasterTerm2012 9(15.79%) 7(12.07%) —TrinityTerm2012 17(29.82%) 17(29.31%)
Voting Patterns* —Totalappealsdecided 59(100%) 62(100%) —Fullunanimity 18(30.51%) 14(22.58%) —Qualifiedunanimity 26(44.07%) 32(51.61%) —Divided 15(25.42%) 16(25.81%)
Disposal of appeals —Totalnumber 57(100%) 58(100%) —Appealallowed,includinginpart 22(38.60%) 28(48.28%) —Appealdismissed 31(54.39%) 26(44.83%)
* These figures exclude the case Stanford International Bank Limited (acting by its joint liquidators) v Direc- tor of the Serious Fraud Office [2012] UKSC 3, which was an interim hearing. The total includes two cross-appeals in addition to the 57 main appeals. The disposition of each case was coded as one of five categories: (i) appeal allowed; (ii) appeal allowed in part; (iii) appeal dismissed; (iv) referred to the CJEU; and (v) reference on a devolution issue. For each category of disposition there is a further descriptor of (i) unanimous—all judges agreed on the disposition with the same legal reasoning; (ii) unanimous in result; division on reasons—all judges voted for the same disposition of the appeal but varied somewhat in their legal reasoning to achieve that result (where any substantive legal reasoning by a judge what- soever is counted as new legal reasoning even if the judge claims to join other opinion(s)); and (iii) by majority; dissenting judges—meaning that at least one judge disagreed on the disposition advocated by the majority of the judges (the majority of judges in such a case could themselves be unanimous or split on their legal reasoning, but this information is not recorded). Cross appeals are recorded in the same way but tabulated separately. Statistics 171
Table 1: General Statistics (Continued)
2011–12 2010–11 —References to the Court of Justice of the 1(1.75%) 3(5.17%) European Union —Devolutionissue 3(5.26%) — —Appealmoot — 1(1.72%)
Disposal of cross-appeals —Totalnumber 2(100%) 4(100%) —Cross-appealallowed,includinginpart 1(50%) 2(50%) —Cross-appealdismissed 1(50%) 2(50%)
Panel Size —9 1(1.75%) 7(12.07%) —7 13(22.81%) 12(20.69%) —5 42(73.68%) 39(67.24%) —3 1(1.75%) 0(0%) —Panels including Acting Justices† 15(26.32%) 4(6.90%)
† The category ‘Acting Justice' includes members of the Court who were once Full Justices (for example, Lord Collins) and those who later became Full Justices (for example, Lord Reed). The categorisation is determined by the judge's status at the time the judgment was given. 172 Appendix B
Table 2: Statistics for Individual Justices‡
Cases Within Within Judgments decided Majority Minority Written LordPhillips 18 16(88.89%) 2(11.11%) 10(55.56%) LordHope 33 31(93.94%) 2(6.06%) 27(81.82%) LordWalker 23 22(95.65%) 1(4.35%) 13(56.52%) LadyHale 30 25(83.33%) 5(16.67%) 15(50%) LordBrown 27 26(96.30%) 1(3.70%) 15(55.56%) LordMance 27 24(88.89%) 3(11.11%) 16(59.26%) LordKerr 32 26(81.25%) 6(18.75%) 10(31.25%) LordClarke 28 26(92.86%) 2(7.14%) 15(53.57%) LordDyson 27 27(100%) 0(0%) 15(55.56%) LordWilson 25 24(96%) 1(4%) 10(40%) LordCollins 4 4(100%) 0(0%) 2(50%) LordNeuberger 2 2(100%) 0(0%) 2(100%) LordJudge 5 4(80%) 1(20%) 3(60%) LordSumption 6 6(100%) 0(0%) 4(66.67%) Lord Matthew 2 2(100%) 0(0%) 1(50%) Clarke LordReed 16 16(100%) 0(0%) 5(31.25%) LordHamilton 2 2(100%) 0(0%) 2(100%) LordCarnwath 5 5(100%) 0(0%) 2(40%) SirAnthonyHughes 1 1(100%) 0(0%) 1(100%)
‡ The information here also includes Acting Justices. The data in this table has been constructed in the following manner. First, each judge on a panel is recorded as being part of one of two groups: either the majority or minority, based on the judge's vote on the disposition of the case and the numbers of the other judges on the panel concurring in the result (but not necessarily the legal reasoning). Where a judgedissentsfrompartoftheappealonly(forexample,LadyHalein HHvDeputyProsecutoroftheItalian Republic, Genoa; PH v Deputy Prosecutor of the Italian Republic, Genoa; F-K v Polish Judicial Authority [2012] UKSC 25), the vote is classed as a dissent. Second, each judge is determined to have either authored his or her own opinion or to have joined that of another judge or group of judges. Any substantive legal reasoning by a judge whatsoever is counted as a new legal opinion even if the judge claims to join other opinion(s). Each judge receives authorship credit for judgments that list multiple authors. Judges are consideredtohavejoined,andnotwritten,anopinionthatliststhejudgeasinagreement, orifthejudge simply writes that he or she agrees with another judge and does not add any substantive legal reasoning. Statistics 173
h aemjrt rmnrt M n h ubro ie n utc a ato h aoiywis h te a ato h ioiy() h table The (D). Reed). minority Lord the example, of (for part either judgments was of the other part of the were some whilst Justices least majority two at the times in of of Justices part number Full was the were Justice (P), who one case times those same of except the number Justices' in the ‘Acting participated and all Justices (M) excludes two minority which or in majority instances same of the number the indicates data The Mance Lord Brown Lord Hale Lady Walker Lord Hope Lord Phillips Lord
:3 D: 9 M: 12 P: 2 D: 8 M: 10 P: 2 D: 8 M: 10 P: 1 D: 5 M: 6 P: 0 D: 0 M: 0 P: Phillips Lord
:2 D: 11 M: 13 P: 1 D: 14 M: 15 P: 1 D: 14 M: 15 P: 1 D: 11 M: 12 P: 0 D: 0 M: 0 P: Hope Lord
:3 D: 6 M: 9 P: 0 D: 7 M: 7 P: 4 D: 7 M: 11 P: 1 D: 11 M: 12 P: 1 D: 5 M: 6 P: Walker Lord
:3 D: 14 M: 17 P: 5 D: 9 M: 14 P: 4 D: 7 M: 11 P: 1 D: 14 M: 15 P: 2 D: 8 M: 10 P: Hale Lady
odBrown Lord Statistics Voting Comparative 3: Table :1 D: 14 M: 15 P: 5 D: 9 M: 14 P: 0 D: 7 M: 7 P: 1 D: 14 M: 15 P: 2 D: 8 M: 10 P:
:1 D: 14 M: 15 P: 3 D: 14 M: 17 P: 3 D: 6 M: 9 P: 2 D: 11 M: 13 P: 3 D: 9 M: 12 P: Mance Lord
:3 D: 15 M: 18 P: 5 D: 15 M: 20 P: 2 D: 16 M: 18 P: 2 D: 4 M: 6 P: 3 D: 16 M: 19 P: 3 D: 8 M: 11 P: Kerr Lord
:1 D: 10 M: 11 P: 2 D: 6 M: 8 P: 1 D: 10 M: 11 P: 2 D: 12 M: 14 P: 2 D: 14 M: 16 P: 2 D: 7 M: 9 P: Clarke Lord
:1 D: 9 M: 10 P: 0 D: 15 M: 15 P: 2 D: 7 M: 9 P: 1 D: 11 M: 12 P: 1 D: 15 M: 16 P: 1 D: 8 M: 9 P: Dyson Lord
:2 D: 9 M: 11 P: 1 D: 11 M: 12 P: 3 D: 14 M: 17 P: 1 D: 9 M: 10 P: 1 D: 10 M: 11 P: 2 D: 9 M: 11 P: Wilson Lord
:1 D: 1 M: 2 P: 0 D: 1 M: 1 P: 0 D: 1 M: 1 P: 0 D: 5 M: 5 P: 0 D: 3 M: 3 P: 0 D: 2 M: 2 P: Sumption Lord
:0 D: 3 M: 3 P: 0 D: 5 M: 5 P: 0 D: 9 M: 9 P: 0 D: 4 M: 4 P: 0 D: 10 M: 10 P: 0 D: 3 M: 3 P: Reed Lord :0 D: 1 M: 1 P: 0 D: 0 M: 0 P: 0 D: 3 M: 3 P: 0 D: 2 M: 2 P: 0 D: 3 M: 3 P: 0 D: 1 M: 1 P: Carnwath Lord 174 Appendix B
h aemjrt rmnrt M n h ubro ie n utc a ato h aoiywis h te a ato h ioiy() h table The (D). Reed). minority Lord the example, of (for part either judgments was of the other part of the were some whilst Justices least majority two at the times in of of Justices part number Full was the were Justice (P), who one case times those same of except the number Justices' in the ‘Acting participated and all Justices (M) excludes two minority which or in majority instances same of the number the indicates data The Reed Lord tion Sump- Lord Wilson Lord Dyson Lord Clarke Lord Kerr Lord
:0 D: 3 M: 3 P: 0 D: 2 M: 2 P: 2 D: 9 M: 11 P: 1 D: 8 M: 9 P: 2 D: 7 M: 9 P: 3 D: 8 M: 11 P: Phillips Lord
:0 D: 10 M: 10 P: 0 D: 3 M: 3 P: 1 D: 10 M: 11 P: 1 D: 15 M: 16 P: 2 D: 14 M: 16 P: 3 D: 16 M: 19 P: Hope Lord
:0 D: 4 M: 4 P: 0 D: 5 M: 5 P: 1 D: 9 M: 10 P: 1 D: 11 M: 12 P: 2 D: 12 M: 14 P: 2 D: 4 M: 6 P: Walker Lord :0 D: 9 M: 9 P: 0 D: 1 M: 1 P: 3 D: 14 M: 17 P: 2 D: 7 M: 9 P: 1 D: 10 M: 11 P: 2 D: 16 M: 18 P: Hale Lady
al :CmaaieVtn ttsis(Continued) Statistics Voting Comparative 3: Table
:0 D: 5 M: 5 P: 0 D: 1 M: 1 P: 1 D: 11 M: 12 P: 0 D: 15 M: 15 P: 2 D: 6 M: 8 P: 5 D: 15 M: 20 P: Brown Lord
:0 D: 3 M: 3 P: 1 D: 1 M: 2 P: 2 D: 9 M: 11 P: 1 D: 9 M: 10 P: 1 D: 10 M: 11 P: 3 D: 15 M: 18 P: Mance Lord
:0 D: 7 M: 7 P: 0 D: 0 M: 0 P: 2 D: 13 M: 15 P: 5 D: 11 M: 16 P: 2 D: 8 M: 10 P: Kerr Lord
:1 D: 10 M: 11 P: 1 D: 4 M: 5 P: 1 D: 9 M: 10 P: 0 D: 15 M: 15 P: 2 D: 8 M: 10 P: Clarke Lord
:0 D: 7 M: 7 P: 0 D: 2 M: 2 P: 1 D: 6 M: 7 P: 0 D: 15 M: 15 P: 5 D: 11 M: 16 P: Dyson Lord
:0 D: 6 M: 6 P: 0 D: 0 M: 0 P: 1 D: 6 M: 7 P: 1 D: 9 M: 10 P: 2 D: 13 M: 15 P: Wilson Lord
:0 D: 3 M: 3 P: 0 D: 0 M: 0 P: 0 D: 2 M: 2 P: 1 D: 4 M: 5 P: 0 D: 0 M: 0 P: Sumption Lord
:0 D: 3 M: 3 P: 0 D: 6 M: 6 P: 0 D: 7 M: 7 P: 1 D: 10 M: 11 P: 0 D: 7 M: 7 P: Reed Lord :0 D: 3 M: 3 P: 0 D: 2 M: 2 P: 0 D: 2 M: 2 P: 0 D: 2 M: 2 P: 0 D: 1 M: 1 P: 0 D: 0 M: 0 P: Carnwath Lord Statistics 175
h aemjrt rmnrt M n h ubro ie n utc a ato h aoiywis h te a ato h ioiy() h table The (D). Reed). minority Lord the example, of (for part either judgments was of the other part of the were some whilst Justices least majority two at the times in of of Justices part number Full was the were Justice (P), who one case times those same of except the number Justices' in the ‘Acting participated and all Justices (M) excludes two minority which or in majority instances same of the number the indicates data The wath Carn- Lord
:0 D: 1 M: 1 P: Phillips Lord
:0 D: 3 M: 3 P: Hope Lord
:0 D: 2 M: 2 P: Walker Lord :0 D: 3 M: 3 P: Hale Lady
al :CmaaieVtn ttsis(Continued) Statistics Voting Comparative 3: Table
:0 D: 0 M: 0 P: Brown Lord
:0 D: 1 M: 1 P: Mance Lord
:0 D: 0 M: 0 P: Kerr Lord
:0 D: 1 M: 1 P: Clarke Lord
:0 D: 2 M: 2 P: Dyson Lord
:0 D: 2 M: 2 P: Wilson Lord
:0 D: 2 M: 2 P: Sumption Lord
:0 D: 3 M: 3 P: Reed Lord odCarnwath Lord