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“Rotting Links” – Permanence in Legal Scholarship in the Digital Age

Just a quick note on an essay I read today by Jonathan Zittrain, Kendra Albert and Lawrence Less in the Harvard Law Review which I found pretty interesting and may be of interest to legal information professionals.

The article, entitled “Perma: Scoping and Addressing the Problem of Link and Reference Rot in Legal Citations” explores the risks and problems associated with linking to third party providers of information for the citation of sources in legal scholarship. I suppose that this isn’t a problem confined to legal scholarship alone.

To give you a feel for the direction of the article, see the quote below:

In principle, as cited sources move to the Web, this linking should become easier. Rather than requiring a reader to travel to a library to follow the sources cited by an author, the reader should be able to retrieve the cited material immediately with a single click.

But again, only in principle. The link, a URL, points to a resource hosted by a third party. That resource will only survive so as long as the third party preserves it. And as websites evolve, not all third parties will have a sufficient interest in preserving the links that provide backwards compatibility to those who relied upon those links. The author of the cited source may decide the argument in the source was mistaken and take it down. The website owner may decide to abandon one mode of organizing material for another. Or the organization providing the source material may change its views and “update” the original source to reflect its evolving views. In each case, the citing paper is vulnerable to footnotes that no longer support its claims. This vulnerability threatens the integrity of the resulting scholarship.

Well worth a read, particularly if you, like me, still haven’t shaken your trust in the printed word.

The reference to the article is 127 Harv L Rev F. 176 (just in case the link rots one day!)

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Appeals against conviction on grounds of incompetent representation: R v Achogbuo (ex tempore)

On 20 March 2014, the Court of Appeal (Criminal Division) dismissed an application by the defendant for permission to appeal against his conviction of two counts of sexual touching of a girl under 13 years of age, contrary to section 7(1) of the Sexual Offences Act 2003.

Interestingly, this case involves the use of a seldom exercised power under section 20 of the Criminal Appeal Act 1968 allowing the Court of Appeal, on a reference by the court registrar, to summarily dispose of a notice of appeal or application for leave to appeal does not show any substantial ground of appeal

The defendant, whose defence at trial was that the allegations were the result of collusion by the complainant and her relatives, gave a no-comment interview. Following his conviction, his counsel (whose advocacy had been commended by the trial judge) advised against applying for permission to appeal. The defendant instructed new solicitors but they took no further action.

Further solicitors were then instructed, who applied for permission to appeal on the ground that hearsay evidence had been wrongly admitted into evidence at the trial. However, following an examination of the transcript of the trial, it transpired that no hearsay evidence has in fact been admitted. The defendant’s solicitors at this point conceded that the application was misconceived.

A second application was submitted, the author of which was aware of the first application. However, the second application made no mention of the first application (Lord Thomas CJ noted that this was a serious omission which the Solicitors Regulation Authority should investigate).

The gist of the second application was that the defendant had not been told that he could waive privilege and explain to the try why he solicitors had advised him not to respond to questions during the police interview. The Court of Appeal office had written to counsel and solicitors present and the trial, the replies of which made it evident that the proposed ground on the waiving of privilege had no prospect of succeeding.

Lord Thomas CJ held that the application was frivolous and vexatious because of (a) the serious no disclosure of the first application in the second application and (b) the second application was bound to fail at any rate. His Lordship said that cases involving assertions of incompetent representation were not infrequent, but often no inquiries were being made of the lawyers (both counsel and solicitors) concerned. His Lordship said that it was not permitted to rely on the word of the defendant alone in such cases and that proper steps had needed to be taken in order to ascertain whether there was a cogent objective basis for a proposed ground of appeal of incompetent representation.

Lord Thomas said that the use of the power under s 20 of the Criminal Appeal Act 1968 was rare (the power was used in R v Davis [2013] EWCA Crim 2424), but would be used more frequently if cases of this sort continued to come before the court.

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No obligation to hold public inquiry into Malayan civilian deaths in 1948: Keyu v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 312

The Court of Appeal in Keyu v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 312; [2014] WLR (D) 138 dismissed an application by the claimants for a public inquiry or similar investigation into events that occurred on 11/12 December 1948 when a patrol of the Second Battalion of the Scots Guards shot and killed 24 civilians at the Batang Kali rubber plantation on the Sungei Remok Estate, in the State of Selangor, which was a British Protected State within the former Federation of Malaya.

Dismissing the appeal against the Divisional Court’s refusal to grant the claimant’s application, Maurice Kay LJ, giving judgment for the court, held that:

(a) The Convention for the Protection of Human Rights and Fundamental Freedoms (specifically, Article 2) did not create an obligation on the Secretary of State for Foreign Affairs or the Secretary of State for Defence to conduct an inquiry into death occurring in Malaya in 1948 before the Convention was adopted and acceded to by the UK; and

(b) No duty arose under customary international law which could be enforced at common law; and

(c) The decisions of the the Secretaries of State to exercise their discretion not to establish a public enquiry were not vitiated on public law grounds.

The Court’s decision as to (a) whether the Convention created a duty to conduct an inquiry and (b) whether there was no duty to do so under customary international law affirms that of the decision of the Divisional Court ([2012] EWHC 2445 (Admin); [2012] WLR (D) 261).

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New Feature on Carrefax: ICLR Case Summaries Feed

I’ve just added a new and nifty little feature to this blog: on the right-hand navigation pane, just beneath the “Recent Transmissions” list, you will now see a self-updating feed of free case summaries published by ICLR. When you click on any of the cases in the feed, you will be taken to the full text of the summary on ICLR’s website.

What are ICLR Case Summaries?

ICLR Case Summaries (also known as the WLR Daily or WLR (D)) do exactly what they say on the tin: they are summaries of cases covered by ICLR’s law reporters.

The purpose of the summary service is to provide rapid and freely accessible digests of cases ICLR assess as being capable of changing or modifying the law in a given area. It takes a while to produce a full, authorised report of law-changing cases, so in order to bridge the gap in time between the handing down of judgment and getting the full report published, ICLR publish short summaries of important cases that can be read in conjunction with the raw transcript on BAILII.

How are ICLR Case Summaries structured?

All of ICLR’s case summaries conform to the same structure and style.

The Catchwords - At the very head of the summary you will find the “catchwords”. These are essentially keywords that capture the subject matter of the case being summarised and the key questions the court answered in the course of giving judgment. For example, these are the catchwords I drafted for the summary of the Divisional Court’s decision in DPP v Chambers (“Twitter Joke Trial”):

CRIME  — Message of menacing character — Sending by means of public electronic communications network  — Defendant in Twitter message apparently threatening to blow up airport — Whether offence of basic intent — Whether message of “menacing character”  — Communications Act 2003, s 127(1)(a)

Immediately beneath the catchwords, you will see all of the basic information you would expect to be included in any report of a case: the name of the case; the neutral citation (along with the citation issued to the summary); the court and its constitution; and the date of judgment.

The Proposition Paragraph - Once we’ve got the catchwords and the vital statistics out of the way, we move into the meat of the summary. The first paragraph is know as the “proposition” paragraph. In this paragraph (or group of paragraphs, in long and complex cases) the law reporter attempts to extract the rule or principle of law the case in question establishes. In other words, this section of the summary tells you what the case stands as authority for. For example, again from Chambers:

A message which did not create fear or apprehension in those to whom it was communicated, or who may reasonably have been expected to see it, was not of a “menacing character” within the meaning section 127(1)(a) of the Communications Act 2003. That provision created an offence of basic intent and, accordingly, the mental element of the offence was satisfied if the accused were proved to have intended that the message should have been of menacing character or alternatively, to have been aware of or to have recognised the risk at the time of sending the message that it might have created fear or apprehension in any reasonable member of the public who had read or seen it. Moreover, a “tweet” ” sent via the social networking site Twitter, was “a message” sent by an electronic communications service for the purposes of section 127(1) of the 2003 Act regardless of whether the tweet was read as a “message” or as content on the website.

The Procedural Paragraph - Immediately below the proposition paragraph, you’ll see a section setting out the procedural and factual background of the case. This bit outlines the case’s journey through the courts, along with the absolutely essential components of the case’s factual matrix. Nothing more than that which is absolutely necessary to assist your understanding of the case is included in here. From Chambers:

The Divisional Court of the Queen’s Bench Division so held when allowing an appeal by way of case stated by the defendant, Paul Chambers, against the decision of the Crown Court at Doncaster (Judge Davies and justices) 3 March 2011 to uphold his conviction in the magistrates’ court for sending by a public electronic communication network a message of a menacing character contrary to section 127(1)(a) of the Communications Act 2003. The prosecution alleged that on 6 January 2010, following an alert on the Twitter social network, the defendant had become aware of problems due to adverse weather conditions at Robin Hood Airport in Doncaster, from where he had been due to travel nine days later. He had responded by posting a number of “tweets” on Twitter, including the following message: “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!”.

Note: where the decision in the case being digested turns upon or concerns a provision in a statute, that provision will be set out beneath the procedural paragraph.

Digest of the Judgment - The last bit is the part where the law reporter attempts to digest the actual judgment, without rewriting the judgment! The thing to bear in mind here is that the point of the summary is to only deal with the important stuff, anything that is not essential to understanding the ratio of the case is disregarded.

Here’s an extract of my digest of what Lord Judge CJ said in Chambers:

LORD JUDGE CJ said, in the reserved judgment of the court, that the social networking site, Twitter, fell within the description of a “public electronic communications network” and that the potential recipients of messages or “tweets” sent via that network was the public as a whole, consisting of all sections of society. It was immaterial that the accused intended only that his message be read by a limited class of people, namely his followers, who, knowing him, would be neither fearful nor apprehensive when they read it. Accordingly, Twitter, and tweets sent via that network, fell within the ambit of section 127(1) of the 2003 Act whether one read the tweet at a time when it could have been read as content, rather than a message. A message which did not create fear or apprehension in those to whom it was communicated, or who might reasonably have been expected to see it, was not of a “menacing character” within the meaning section 127(1)(a).

So there you have it – a nice little feed of new cases to stay up to date with and a guide to what you’ll find in the summaries. You can find out more about ICLR here.

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Are decisions of the Crown Court binding?

A very interesting question was raised by @greg_callus on Twitter this morning: are the decisions of the Crown Court binding on itself and the magistrates’ court? The question arose from Sweeney J’s “reading down” of the burden of proof for the defence of marital coercion in the Vicky Pryce case.

The leading school of thought on Twitter seems to be that the decisions of the Crown Court are not binding, either because the Crown Court does not belong to the strata of courts that have authority to bind itself and lower courts, or because the decisions of the Crown Court are not reported by the law reporters.

So, if the question is “are rulings of law made by the Crown Court binding on itself and the magistrates’ court?” – my answer would be “yes, sometimes – depending upon the nature of the proceedings the ruling relates to.”

If the ruling is made in relation to a trial on indictment, I suggest that the ruling is binding. If, however, the ruling is made in circumstances not relating to a trial on indictment, the ruling is not binding.

First of all, we need to make clear that the Crown Court is a single court. Even though it sits in a number of geographical sites, it is in fact a a single court just like the Criminal Division of the Court of Appeal.

The jurisdiction of the Crown Court is derived from, and governed by, sections 45-48 of the Senior Courts Act 1981. Section 45(1) of the 1981 Act provides that the “Crown Court shall be a superior court of record.” This goes a long way in supporting the notion that the decisions of the Crown Court may be binding.

The Crown Court has jurisdiction to hear trials on indictment and appeals from the magistrates’ court. Appeals against conviction or sentence arising from a trial on indictment can only be heard by the Court of Appeal (Criminal Division). Such appeals may not be heard by the High Court, because the outcome of a trial on indictment cannot be appealed by way of case stated. This means that where the Crown Court makes a ruling of law during the course of a trial on indictment (such as that made by Sweeney J in the Pryce case), that ruling of law may only be challenged in the Court of Appeal (Criminal Division). Accordingly, and therefore, when the Crown Court makes such a ruling, it is exercising a jurisdiction equal or approximate to that of the High Court. In those circumstances, I say that the Crown Court ruling is binding on itself and the magistrates’ court as if that ruling had been made by the High Court, unless and until that ruling has been successfully challenged and reversed by the Court of Appeal.

However, rulings that are made by the Crown Court that do not relate to a trial on indictment do not carry binding force. Take a ruling made by the Crown Court when exercising its appellate capacity on an appeal from the magistrates’ court. The aggrieved party cannot challenge the outcome of the Crown Court’s decision in the Court of Appeal (Criminal Division). They may only challenge the decision by way of case stated or by judicial review – in either case, the challenge can only be entertained in the first instance by the Divisional Court (which is an emanation of the High Court) or by the Administrative Court in the QBD of the High Court. Therefore, in those circumstances, the Crown Court cannot be said to be exercising a jurisdiction equal or approximate to that of the High Court, because if it was, the High Court (or the Divisional Court) would be an inappropriate appellate venue.

Therefore, on my analysis, Sweeney J’s reading down of the defence of marital coercion is binding on the Crown Court wherever it is sitting and upon the magistrates’ court whenever a case turning on materially similar facts to those in Pryce arise.

Simples. (???!!!)

Ps – I’ll add links to this post a little bit later in the day. C

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The Curious Case of the Judgment Enhancers

On 6 February 2013, I gave a seminar at the offices of Lewis Silkin LLP entitled “The Curious Case of the Judgment Enhancers”. This is a transcript of the seminar I delivered, for those who are interested in such things.

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The Curious Case of the Judgment Enhancers

[Intro omitted]

2. Tonight’s seminar is about law reporting: in particular, the brand of law reporting carried out by the ICLR. Now, notwithstanding the fact that I am an employee of the Council, it is worth noting at the outset that the talk I am about to give is based, to a large extent, on my own personal survey of the issues I intend to talk to you about – the contents of this seminar is not, as it were, “ICLR-sanctioned”. That is not meant to strike fear into the heart of ICLR’s CEO, who is with us tonight, I am unlikely to speak disparagingly of an organisation I work and hold a great deal of respect for. But, some of the questions I want to address require me to move my perspective away from that of an ICLR employee looking, from the inside, out into the legal world – to a position where I’m on the outside looking in.

3. I’m going to kick this talk of with a statistic I stumbled upon a few weeks ago that I found rather surprising: in it’s 2011 end of year financial statement, Thomson Reuters reported that 90% of its revenue for that year was derived from the sale of products and services delivered across online and other digital platforms – only 10 per cent of it’s very considerable revenue base was achieved through the sale of print-based products. And, the conclusion I draw from that statistic is that the transition from print to online research habits is in a state of near completion, rather than ongoing development. In other words, the internet, in my view, now well and truly reigns supreme.

4. This shift from print to online media has brought with it considerable changes that you, as information professionals, will be acutely aware of:

  • It’s changed where we buy our services from and how much we pay for them;
  • It’s changed how and where we access the materials those services make available;
  • It’s changed the way in which hitherto disparate materials link to and cross-reference each other; and
  • It’s changed how we think about where the material we access originates from.

5. Arguably – the technology – the platforms delivering the content (pre-eminently, in this jurisdiction, WestlawUK and LexisLibrary) – occupy far more of our focus than the content itself. We are prone to concentrate far more, for understandable reasons, on the search capabilities of the various platforms; how we train others to become proficient in their use; and the opportunities the technology offers us to share and mobilise the content we use. The shift from print to online has even modified the lexicon of legal information management: in this paragraph alone, I have used the word “content” three times! To this “vocab-2.0”, we might add words and phrases like: “aggregate”, “disaggregate” and even “algorithm”!

6. All of these changes are symptomatic of the way access to legal information has developed, particularly over the last ten or fifteen years. This isn’t necessarily a bad thing, but it has, in my view, detracted from the attention we give to the “content” itself. And, without wishing to invoke a “Jamie Oliverism” along the lines of “you can’t appreciate a good roast lamb unless you’ve been to an abattoir”, understanding the provenance of the materials we make use of not only enhances the way we use them, it also helps us assess their relative value – and, in an age of content proliferation, an appreciation of provenance, function and value is very useful.

7. So, in this seminar, I want peel back this “platform” layer and take a look behind that veil at one class of legal content in particular: law reports of the decisions of judges.

The sources of English Law

8. The first thing most law students learn at university is that there are two main sources of English law. The first is the law made by Parliament: Acts of Parliament; statutes; primary legislation – it took me a couple of weeks to realise that each of the labels were describing the same thing. We learned that in the English legal system, this source of law was prime, because statutes were enacted by those with a democratic mandate. Parliament, and therefore its “Acts”, was sovereign. This source of law was conceptually quite easy to get to grips with: statutes were no more than a written list of rules bearing on a particular subject.

9. We then learned that the second source of law was the law made by judges in the courts – or the common law. Roughly speaking, we were told that where Parliament had been silent on a particular issue, the judges in the courts were able to create new rules in order to dispense with the legal problems the parties to a dispute presented them with.  Where Parliament had spoken on a subject by passing a statute, the court’s job was to give effect to the words of that statute as best it could.

10. The notion of law made by judges in the courts felt conceptually more difficult to grasp than laws made by Parliament in statutes; and things got trickier when we learned that the decisions of judges had to adhere to the doctrine of precedent, the principle that holds that a decision made by a superior court, or by the same court in an earlier decision, was binding precedent that that court itself and all its inferior courts were obligated to follow.

11. As a new law student, still wet behind the ears, all of this struck me as being rather strange. Between them, these two vast pools of law contained the rules that governed everyone’s rights, obligations and liabilities. One of those pools, statutes, felt manageable – if I wanted to find the definition of a “theft”, I could look up the Theft Act 1968 and I would quickly see at section 1(1) that a theft was where a person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

12. But, the first pool overlapped with the second pool – the common law. And, because of this, a lawyer (or a law student), couldn’t take the words of that section at face value – the meaning of the words in that short sentence all bore meanings that had been defined by the courts. So, one also has to look at this unwieldy body of judge made law. To understand what the word “dishonestly” means, one has to look to the decision of the Court of Appeal in R v Ghosh [1982] QB 1053. To define the phrase, “belonging to another”, one has to look to the House of Lords’ decision in Lawrence v Metropolitan Police Commissioner [1972] AC 626.

13. What I found puzzling as a law student was the fact that such a huge part of our corpus of law was made up by a combination of written rules, on the one hand, and a vast web of judgments, handed down at different times, by different courts, on the other. All of this remains the case today  – technology hasn’t changed this.

14. And this moves me to make what will hopefully be a relatively uncontroversial proposition: if so many of our rights, obligations and liabilities are to be found in the decisions of judges, it is vital that the decisions of judges are made accessible. But, to this proposition, I add another: it is not enough that the decisions of judges be accessible. What is also required is that they be organised and rendered into a system.  If the decisions of judges are not made accessible in a systematic way, it becomes far more difficult to identify what the law actually is and doubt, in any legal structure, is seldom a good thing.

15. The strands that make up the English common law are many and they are in constant flux. And, as the then Lord Chief Justice Lord Bingham said at the First Symposium on Law Reporting, Legal Information and Electronic Media in the New Millennium in 2000, in a common-law system, where the decisions of judges are a sources of law and there is a doctrine of precedent, the public must have access to the products of judicial decision-making, and the end product of that process should be in the public domain, even if not entirely free of charge.

16. Since 1865, in lieu of a state funded and state organised alternative, the organisation responsible for bringing the product of judicial decision-making to order has been the Incorporated Council of Law Reporting.

The Establishment of the Incorporated Council of Law Reporting

17. To be in a position to assess whether the role ICLR plays in bringing order to the common law is still of value, we need to understand a bit about what brought the Council into being in the first place.

18. The regular practice of law reporting dates back to the late 12th century, but the really interesting period for present purposes is the period of law reporting carried on by private individuals between the 16th century and the mid-19th century. This is the period of the Nominate Reports and there are certain features of this period of legal information dissemination that are echoed today.

19. Even in the 21st century, cases reported by the Nominate reporters are still cited before the courts. An example includes Pinnell’s Case (1602) 5 Co Rep 117a, a case decided and reported by Sir Edward Coke on the part payment of contractual debts. This period of law reporting was marked by a vast number of individual reporters publishing volumes or series of case reports under their own names. And, often, there were two of them, sounding like comedy duos: we had the reports of Adolphus & Ellis, Meeson & Welsby, Flanagan & Kelly, French & Saunders…

20. The Nominate reports worked well enough for a while, but over time a number of problems started to emerge:

  • The various series varied enormously in coverage, accuracy and reliability: occasionally cases reported in more than one series reported different holdings and outcomes.
  • The vast number of different reports on offer made it difficult to cultivate anything resembling a comprehensive library of material without enormous expense.

21. Of these vices, standards of accuracy and reliability gave rise to the most concern. In 1849 a report of the Law Amendment Society complained that although the decisions of the courts were the formal constituents of the common law, they were in no respect officially promulgated. The report went on to observe, somewhat scathingly, that it had long been considered a practicable scheme for any barrister and bookseller who united together with a view to notoriety or profit, to add to the existing list of law reports. The result of all of this, in the Law Amendment Society’s view, was that even if all of the reports which were published were correct and given to competent persons, they were then so numerous that they couldn’t be known to one tithe of the practitioners of law. The decisions of the courts were beyond not only the reach of the public, but, more worryingly, perhaps, most of the legal profession.

22. In order to ameliorate the risks of inaccuracy, inconsistency and expense, a better system for bringing the common law together was needed. The Incorporated Council of Law Reporting was established in 1865 to do just that and the series known as The Law Reports was launched.

23. That series of reports is still published on a monthly basis today (under the four divisions of Appeal Cases, Queen’s Bench, Chancery and Family). It is this series of law reports, which contain a note of the arguments advanced by counsel, that are required to be cited in preference to any other, including ICLR’s secondary generalist series of reports, The Weekly Law Reports, which were launched in 1953 to cater for the demand for more rapid publication of judicial decisions.

The law reporters

24. Many aspects of the ICLR are much the same today as they were in 1865. Now, as then, the purpose of the ICLR can be reduced to two core pillars: the first is to identify which cases to report and which cases to reject. The second is to find a way of defining and articulating the principle or principles for which each case reported stands as authority. The achievement of both of these pillars of purpose rests now, as much as it did in 1865, on the highest standards of legal scholarship. ICLR’s most important asset, therefore, is its team of law reporters – the largest of its kind in the English jurisdiction.

25. Even though most of us will be familiar, to greater or lesser degrees, with the law reports published by ICLR – it’s fair to say we are generally far less familiar with the work carried out by those writing them. In fact, it wasn’t until I became a law reporter myself that I had any idea of what these “law reporters” spent their time doing. But, it’s my belief that to fully understand the work of the ICLR, and, by extension, whether it is still of value, we need to understand what the law reporters do.

26.  The ICLR covers the full range of superior courts in England & Wales, from the Employment Appeal Tribunal, to the three divisions of the High Court, up to the Supreme Court. Apart from the European Court of Justice, which we cover from London, our reporters are assigned their own courts, which they cover full time. All of the reporters are lawyers: all having qualified as barristers or solicitors.

Law reporters as journalists

27. Law reporters are a niche breed of legal journalists, indeed we share some similarities with our Fleet Street contemporaries. If a law reporter’s job could be divided three ways, the first third of their role is journalistic in nature.

This is a good opportunity to distinguish between “court reporters” and “law reporters”, because the terms are often confused. A “court reporter” is there to report upon what happens in court. We read their coverage in the mainstream press. A “law reporter”, on the other hand, does exactly what it say’s on the tin – he or she is there to report the law as decided by the courts. The law reporter’s first duty is to cover the courts. This, at its simplest, means being physically present in court to listen to the cases unfold. But, unlike our Fleet Street colleagues, we are not in court to solely cover sensational cases – we are there to cover all substantive hearings.

28. The reporter’s first job, once in court, is to quickly identify what the case is about, who are the parties, what are the issues in dispute, what is the legal framework governing the resolution of the dispute. Even before the hearing starts, the reporter will inevitably have spoken to counsel for all of the parties to get a flavour for what’s happening. The next job is to get a copy of the papers: the skeleton arguments filed by the parties, together with procedural documentation such as the claim forms or appeal notices. This information enables the reporter to isolate the terms upon which the claim, appeal or application (whichever it may be) is being advanced on.

29. The second job is to cover the argument – that portion of the proceedings where counsel for the parties make their legal and factual submissions to the court. Here, the reporter will take a close note of the argument orally delivered. A sceptical approach is sometimes taken to the contents of the skeleton arguments filed with the court: it’s important we record the argument counsel actually delivers, rather than that which counsel intended to deliver. Here, as well as recording the substantive propositions made in argument, the reporter will record each and every case cited to support those propositions.

30. The final component of the journalistic phase of the reporter’s role is probably the most critical – to take a close note of the judgment, if given ex tempore, or to be their to collect a copy of the judgment if it is handed down in written form, as is often the case in more complex cases. This concludes the reporter’s journalistic function, the next exercise is more academic.

31. Before I move onto the next phase of the law reporter’s role, I want to launch a pre-emptive strike on a question I have been asked many times before: “why do the reporters bother going to court when they can just read a transcript of the judgment?” There are three answers to this question:

  • If law reporters relied on transcripts, we would miss those judgments given ex tempore and read into the record – a transcript of which will not necessarily ever materialise on BAILII, for example.
  • If law reporters didn’t physically attend court, it would be impossible to accurately reflect the arguments the court heard. We could only rely on the summary of argument set out by the judge in the judgment (if there is one) or rely on the skeleton arguments (if they are available). And, as I have already said, skeleton arguments are not a full proof guide to the argument the court actually heard.
  • Being physically present for argument and judgment assists the reporter, to a very significant degree, in understanding what the case is about. This first hand knowledge of the case is worth its weigh in gold when it comes to summarising the factual matrix of the case and extracting the ratio of the decision.

Law reporters as academics

 

32. Whereas the first phase of the reporter’s role is journalistic, the second phase is academic. Having collected the judgment in any given case, the reporter’s next job is to assess whether that judgment should be reported.

33. Selectivity, for reasons I will come onto in more depth later, is at the core of ICLR’s reporting ethos. Casting our minds back to one of the problems during the days of the Nominate reports, we’ll recall that the sheer volume of reports was becoming an issue. Even today, it is arguable that there is a strong feeling in the judiciary that too much, rather than too little, is reported.

34. But, how are we to decide whether a judgment is reportable or not? The answer is through the application of the reportability criteria laid down during the establishment of the Council, by Nathaniel Lindley QC (who later became the Master of the Rolls).

35. First, we need to be clear about what should not be reported. On this, Lindley said:

“With respect to subjects reported, care should be taken to exclude –

  1. Those cases which pass without discussion or consideration, and which are valueless as precedents.
  2. Those cases which are substantially repetitions of what is reported already.

36. So, the law reporter will be keen to weed out those cases that are, for example, decided purely on their facts, or those cases decided upon the application of existing principle and reject them for reporting: they have little or no value as authority.

37. But, what are the hallmarks of a reportable case? Again, Lindley provides guidance to the law reporter:

“On the other hand, care should be taken to include –

  1. All cases which introduce, or appear to introduce, a new principle or a new rule.
  2. All cases which materially modify an existing principle or rule.
  3. All cases which settle, or materially tend to settle, a question upon which the law is doubtful.
  4. All cases which for any reason are peculiarly instructive.”

38. Lindley’s criteria are a guide to the qualities a reportable case may possess, rather than a definition of reportability. But, in an effort to reduce that criteria into a straightforward, modern format, it is safe to say that ICLR strives to identify and report cases that make new laws, change existing laws or explain existing laws.

39. Naturally, one of ICLR’s primary concerns is that practitioners and the public have access to precedent setting cases – but that isn’t our only concern. Looking through the prism of the reportability question, ICLR can also be seen to be performing a higher function: the analysis of the constant ebb and flow of the corpus of law known as the common law. When a case registers a shift or fluctuation in the common law by making new laws or modifying existing ones, ICLR’s primary role is to record that shift or fluctuation in the form of a law report.

40. This is a point Lord Neuberger made when giving the first annual BAILII lecture last November. His Lordship said:

“Scholarly law reporting, judgment enhancement, is of particular importance because of the role it plays in developing the corpus of law. This is especially true of the common law, which is of course judge-made law. The common law develops gradually through precedent, which is of course contained in Judgments, and precedent is refined over time. It changes as society changes; principles are adapted and applied. The common law could not do this without scholarly law reporting.”

41. So, when the law reporter, having carefully read and considered a judgment, turns to the question of whether it is reportable or not, she is not merely making an editorial decision of to publish or not to publish – she is herself making a judgment about whether the judgment represents a “common law event” significant enough to be recorded, analysed and communicated as a published law report.

42. These decisions require a great deal of skill. In order to make an informed decision on reportability, the reporter needs to be able to isolate the essential facts of the case; extract the ratio of the decision with sufficient precision and assess, against the background of existing law (be it in statutes or other cases), whether the case in question is doing something novel. On top of this, the reporter will need to consider whether the case in question has affected the value of earlier authorities – has it applied or followed an earlier decision, distinguished the ambit of an earlier authority, overruled it altogether?

On judicial consideration

43. I want to focus on this concept of judicial consideration for a few moments, because the evaluation of how new law affects existing law is critical. New technology has given rise to an algorithmic approach to the determination of whether a case is good law or not. A number of legal information vendors around the world are starting to making use of computer programmes that are seemingly capable of determining whether a case is still good law or not. This is all well and good if the shades of judicial consideration can be reduced to good treatment, bad treatment, neutral treatment or “approach this case with caution!”, but, in my view, the concept of judicial consideration is far more complex than separating cases into the good, the bad and the ugly.

44. ICLR’s law reporters still approach the question of judicial consideration as an intellectual exercise that can only be performed well by closely analysing judgments followed by the application of legal knowledge. Is the court adopting the decision of a higher court where the factual matrices of the cases are substantially the same? If so, the earlier decision may be said to have been “followed”. Is the court adopting the decision of a court of coordinate or superior authority where the factual matrices of the cases are not substantially the same? If so, the earlier decision may be said to have been “applied”. Has a case really been “considered” merely by reason that it was mentioned once in a 100-paragraph judgment? Has dicta in an earlier decision been distinguished or explained? If so, what dicta has been so treated?

The law reporter as judgment enhancer

45. The last phase of the reporter’s role is that which users and readers see when they select a volume from a library shelf or select a case from a list of results. The reporter’s last duty, having decided to report, is to enhance the judgment: to convert the raw transcript of what the judge has said into a law report.

46. There is a note of irreverence in saying that law reporters enhance judgments, but of course no irreverence is intended. By enhancing the judgment I really mean two things:

  • First, the process of putting the case into its common law context for later retrieval: carefully crafted catchwords, which appear at the head of the report, permit the case to be indexed into a rational taxonomy.
  • Second, the addition of value that increases the utility of the judgment as a source of authority and learning.

47. Here, the reporter moves from academic to draftsman. She will, as I have mentioned, craft a set of catchwords encapsulating the subject matter of the case and the questions the court answers. A headnote is drafted setting all of the critical facts necessary to support the identified ratio of the case. Care must be taken to include all that is relevant, but equally, care needs to be taken to exclude ephemera. You may notice, on close inspection of the factual section of a headnote that it is rare for the names of the parties or dates of events to be included. This is because, more often than not, names and dates are not relevant to the propositions of law the cases stand as authority for.

48. Next, an arguably the most important element of value, comes the summary of the court’s decision. This can be the most challenging aspect of the drafting process, particularly where there are assenting and dissenting judgments, or where, as often happens, a panel of three or more judges arrive at similar conclusions via different routes.

49. A good example of such a case is the House of Lords’ decision in R (on the application of Pinochet Ugarte) v Bow Street Magistrates’ Court [2000] 1 AC 147. The case is fairly well-known, and was concerned with the question, inter alia, of whether General Pinochet had immunity under customary international law from allegations of torture by reason of that fact that he was, at the material time, a head of state and/or that the alleged conduct had taken place in the context of his functions as head of state. The decision was reported in Appeal Cases and the reporter was Ms Bobby Scully, who still reports from the Supreme Court and is also the editor of the Times Reports.

50. To give you a flavour of the scale of the task Ms Scully had in summarising the ratio of the decision in that case, it will help you to know that:

  • Seven Law Lords presided, each giving their own speech. On the point of whether extraterritorial torture was a crime in the UK before the passing of the Criminal Justice Act 1988, Lord Millet dissented.
  • On the point of whether a former head of state had immunity from the criminal jurisdiction of the UK for acts done in an official capacity as a head of state, Lord Goff dissented.
  • On the point of whether there was universal jurisdiction to prosecute crimes of torture, Lord Hope, Lord Browne-Wilkinson and Lord Saville all offered up their own obiter dicta, dicta falling outside the ratio of the case, but nevertheless relevant.
  • There were over 80 authorities cited in the speeches and over 50 authorities cited in argument.
  • So complicated was the legal argument, that Ms Scully’s note of argument ran on for 30 pages, one of the longest notes of arguments ICLR has ever published.
  • The speeches ran on for over 100 pages.
  • Despite the complexity and volume of the material, thanks to the precision with which Ms Scully encapsulated the various decisions in that case, a reader of the report is only required to read four paragraphs to understand the decision, instead of over 100 pages of complex judicial speeches.

51. When we think of making information ‘accessible’, we often think in terms of cost and ease of location and retrieval. But, information accessibility is wider than this. The law reporter’s efforts, in drafting a precise and accurate headnote, makes the contents of the judgments intellectually accessible.  Without that headnote, readers, regardless of their seniority and experience, have to wade into the text of the judgments utterly unaided.

52. And, in this respect I speak from personal experience: I wasn’t always a law reporter – I started out in the law as a user of law reports, rather than a writer of them. And I still vividly remember an afternoon about five years ago where I was sitting in UCL’s library trying to get my head around the decision of the House of Lords in Pinochet for my international law seminar the following day. Without that headnote on the face of the report, that exercise of comprehension would have taken me far, far longer and I daresay would have led to an inferior understanding of the decision.

The note of argument

53. In addition to setting out the procedural background of all the cases we report, and subjecting every aspect of the judgment to rigorous checking, the other piece of substantial value the reporter enhances judgments with is the note of argument.

54. To my knowledge, The Law Reports is the only series in England & Wales to incorporate this feature. In fact, I believe there is only a handful of reporters worldwide that make a point of including a note of the argument.

55. The note of argument is a valuable research resource and this is because, in the context of the English adversarial system, advocates play a central role in judicial decision-making. If you visit the Royal Courts of Justice to observe proceedings as they take place, you’ll see that, in discerning what elements of the facts of a particular case attract a particular rule of law, the judges look to counsel to tell them – it doesn’t work the other way round. Counsel play a central role in defining the scope of the proceedings in question and play a critical role in defining the sphere of material the court looks to in order to make a decision. If only for this reason, the contribution counsel makes in argument is an invaluable tool for understanding judicial decisions.

56. The point of all this, I would suggest, is these various elements of value added by the reporter means that a great deal of the work in understanding cases is done – where users of law reports are concerned, it’s fair to say that a fair amount of the intellectual legwork has been done. These are features that are probably easy to take for granted the more we get used to having them, but any suggestion that lawyers would find raw transcripts more effective would be a difficult one to sensibly maintain.

The ICLR in the digital age

57. This brings me neatly on to consider the final issue I want to explore in this seminar: namely whether, in the context of the vast quantity of free-to-air law now available online, ICLR is still relevant: to bring the question down to its simplest, in the words of The Clash, should we stay or should be go?

58. This is obviously a difficult issue to grapple with and it’s probably best viewed initially from afar and then to zero in on the difficult questions. But, I’m going to preface this enquiry with a number of propositions:

  • Judicial decisions are constituents of the common law and as such belong to the body of laws that govern every aspect of our lives, be they professional or personal, civil or criminal.
  • Whether or not legal materials are free at the point of access, there is always a cost attendant to their production and dissemination.
  • Lawyers are still the principal users of legal information, and for lawyers, knowing how to find the law is often more important than knowing the law itself.
  • Nevertheless, public demand and consumption for legal information is higher than it’s ever been and continues to rise

BAILII and legislation.gov.uk

59. The new online environment has opened up the market to providers of free information, as well as making things potentially very profitable for subscriber-based suppliers.

60. In the context of legislation, the work being done by the National Archives and the Ministry of Justice on the legislation.gov.uk website represents a very exciting development. The critical task for publishers of legislation is to ensure that the information they are making available is accurate at the time of access, but it is equally critical to give users the ability to move backwards to see earlier versions of enactments as well as to move forwards to see upcoming amendments.

61. Legislation.gov.uk, in my view, is quickly moving into a position where it will be able to offer a service of a similar quality to that which is already offered by paid-for subscriber services. The important difference is that legislation.gov.uk is totally free of charge, and virtually free of copyright constraints.

62. This means that the paid-suppliers, if they wish to continue to be able to charge for their legislation services, will need to think carefully about how they can add value to their current offering and how the benefits of that value can be conveyed to their subscriber base.

63. Things have moved further along the road in the context of case law. BAILII has now established itself as a mainstay of access to the products of judicial decision-making in the United Kingdom.

64. I strongly doubt that BAILII requires much introduction, but this from their About page sums things up nicely:

“The British and Irish Legal Information Institute (BAILII) provides access to the most comprehensive set of British and Irish primary legal materials that are available for free and in one place on the internet. In August 2012, BAILII included 90 databases covering 7 jurisdictions. The system contains around 36 gigabytes of legal materials and around 297,513 searchable documents.”

65. For publishers of legal information, including ICLR, to underestimate BAILII’s scale and appeal would be to their peril. And, this necessarily invites the questions, is BAILII a threat to ICLR? Are the two organisations in competition?

66. Let’s start by considering what the two organisations, BAILII and ICLR, hold in common:

  • Both organisations hold charitable status – they are both not-for-profit and they both divert any financial surpluses straight back into the organisation. Neither organisation is answerable to a board of shareholders – BAILII has it’s board of trustees, ICLR has it’s Council.
  • Both organisations are free from judicial and political interference and hold, as their core charitable objects, the maintenance of the rule of law and the administration of justice.
  • Both rely on the legal community for their financial survival, BAILLI through charitable donation, ICLR through the sale and licensing of its publications.

67. In last year’s BAILII lecture, Lord Neuberger dealt with the issue head on. To quote his Lordship a second time:

“It might be said though that with the growth of Bailii that scholarly law reporting is to a certain extent no longer necessary. This view would see Judgment-enhancement and Judgment-dissemination as competitors, with the latter driving out the former. I disagree with this view. The two types of law reporting complement each other…”

68. There are undoubtedly those who do agree with this view, however. On more than one occasion, I have heard it said that the ICLR should consign the entirety of its archive, spanning almost a century and a half, to BAILII. This of course would spell the end of the ICLR as a going concern because as I have already said, we rely on revenues from the sale and licensing of our reports to keep the organisation afloat.

69. My view is that the theory that BAILII represents a real and present threat to the survival of the ICLR rests on a flawed or incomplete understanding of what the two organisations do and whom they serve. But, one needs to take care not to fall into complacency.

70.  The better view is that ICLR and BAILII are two-sides of the same coin and are complementary of one and other. BAILII’s forte is speed and comprehensiveness. Fast, free access to raw transcripts of judicial decidion-making. ICLR’s forte, on the other hand, is selectivity and expression. To quote Lord Neuberger again:

It seems to me that the relationship which Bailii and the ICLR have just entered into [a relationship whereby the respective online platforms of the two organisations link into one and other] demonstrates clearly the symbiotic relationship that exists between the two types of law reporting. One is compendious and readily and speedily accessible to all. The other is selective, fundamental to the development of the law, and primarily directed to legal academics and professionals.

71. The extent of BAILII’s wide and free accessibility supports the rule of law, because undoubtedly the decisions of the judicial branch of state should be available to all. But, in order to prevent a flood of case law of no precedential value hitting the courts, the need for selectivity is heightened, rather than reduced by the presence of free-to-air services. The freer the contents of the common law, the greater the need for control. I appreciate the contradiction implicit in that remark. But the fact remains that the common law is not only there to be accessed by all who are interested, it is one half of the legal standards that govern the conduct of everyone within and sometimes beyond Britain’s borders. For that reason, and that reason alone, it still remains the case that the cases that change the law, the cases that really matter, need to be identified, explained and disseminated in an authoritative way, by an authoritative institution that is in possession of the most skilled people to do that job. In England & Wales, that institution is the ICLR, the official publisher of precedent setting case law.

72. Until a time comes when lawyers, academics and judges would prefer to have to understand cases like Pinochet without the assistance of a legally qualified law reporter’s headnote, until there is a preference for judgments where typographical, factual and legal errors remain within the text and until no one really minds if the law they are citing is still good law or not, ICLR will remain in symbiosis and partnership with BAILII.

Conclusion

73. There is no doubt that this new age of digital information has caused ICLR, as an organisation, to stop and do a bit of soul searching. We are fundamentally a generator of content, not a collector or aggregator of it. Where the practice of scholarly law reporting, judgment enhancement is concerned, we are thoroughly at home.

74. But, the Internet has changed the dynamic of the legal information market considerably and we need to change with it if we are to survive. In 2011, we launched our own online platform, ICLR Online, because it became clear that we could no longer depend on the sale of printed law reports for financial health. Whereas we have previously been happy for a range of third-party platforms to distribute our reports in cyberspace, we are gradually transforming ourselves into an organisation that can participate, and hold it’s own, in an ever more commercially competitive environment.

75. It’s difficult to picture how things are going to look in twenty or thirty years time. But, I hope, for the benefit of the English common law, ICLR’s judgment enhancers are still roaming the halls of the Royal Courts of Justice and the Supreme Court and making sense of English judicial decision-making for the benefit of lawyers, students, judges, academics and law librarians here and further afield.

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Guest Post: Judges on strike – could it happen here?

Judges in Egypt have threatened to go on strike in protest against a decree, issued by new president Mohammed Mursi, the terms of which place the president above any law and declare that his decisions cannot be challenged. 

In these circumstances, the judges have every right to be concerned.According to reports from the International Business Times, the decree purports to give the president immunity from his country’s judiciary and ensures his decisions cannot be revoked.

For such a move would strike at the very foundations of the rule of law.

As the late Tom Bingham (aka Lord Bingham of Cornhill, one of the greatest British judges of recent times) pointed out in his book The Rule of Law (2010), chap 3, the core of that principle is that

all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.” (Emphasis added.)

Bingham identifies a number of key events in English constitutional history by which this principle was achieved. The first of these was Magna Carta, signed by King John in 1215, which represented “a clear rejection of unbridled, unaccountable royal power, an assertion that even the supreme power in the state must be subject to certain overriding rules.” Though at the time legislative, executive and judicial powers were concentrated in the king, supposedly the Lord’s Anointed, with Magna Carta “he became subject to the constraint of the law.”

Mursi appears to have arrogated to himself exactly the sort of sweeping powers King John once assumed he enjoyed. He has sacked the country’s general prosecutor and taken over the police force. His decree, as read out by a spokesman, states that: “The president can issue any decision or measure to protect the revolution. The constitutional declarations, decisions and laws issued by the president are final and not subject to appeal.”

Egypt’s highest body of judges, the Supreme Judicial Council said, “Morsi’s decree is an unprecedented assault on the independence of the judiciary and its rulings”. Courts in the Mediterranean city of Alexandria have announced a work suspension and the Judges’ Club, which represents judges throughout the country,  called for a nationwide strike. “We were confident that maintaining the independence of the judiciary’s service was the starting point for achieving a state that respects the rule of law, and a genuine democratic state would be the foundation for the prosperity of the nation,” said the judges’ body in a statement.

It is hard to imagine judges in England going on strike, and indeed they have on occasion (applying the law of the land) had to issue injunctions and other orders effectively stopping those in other occupations from downing tools. Nor are we likely to see in our lifetime the sort of constitutional crisis that would make English judges resort to such a move to defend their independence, though they are apt to protest in other ways, eg by writing to the newspaper. (There’s nothing like a wig for keeping a stiff upper lip.)

By contrast, judges of other nations have been more easily provoked. According to The Jurist, in September this year

“Greek judges and court employees  assembled in front of the country’s Supreme Court in Athens to protest proposed pay cuts under the austerity measures for 2013-2014 which will eliminate public sector jobs and lower wages and pension plans. Around 200 judges, public prosecutors and court workers announced that they will cut the operating hours of courts if the proposed new cuts are approved.

The same source reports that in May this year

“judges in Tunisia went on strike to protest a decision by Justice Minister Noureddine Bhiri to fire more than 80 judges. According to the head of the Judge’s Union, Raoudha Abidi, the judiciary’s open-ended strike will not end until Bhiri reverses his decision to terminate the judges’ employment and allows the fired judges to defend against the allegations of corruption in a trial setting. Abidi noted that the judiciary is not defending the allegedly corrupt judges, but is instead calling for the government to allow for each judge to defend their actions and have a fair trial.”

Well, if there’s one thing judges ought to be keen on, it’s a fair trial. Once again, Magna Carta is our touchstone, as Bingham makes clear in his book, for although it may not have resulted immediately in a fair system of trials, it lodged the idea in the minds of the people that such a process was possible, imaginable, even realisable. The ducking-stool days were, if not over, at least numbered.

More reports of judges striking around the globe (I had not realised what a common phenomenon it is turning out to be) include (again from the Jurist):

February 2009: “Judges from more than 30 Spanish provinces went on a one-day strike to demand that the country’s judicial system hire more judges and adopt electronic technology to decrease the workload faced by current judges.”

July 2008: “Italy’s National Association of Magistrates voted to proclaim a “state of agitation,” preparing for a possible strike over anticipated judicial budget cuts by the government of Prime Minister Silvio Berlusconi. Judges argued that the proposed cuts would drastically reduce the judiciary’s ability to combat lawlessness. The judges also expressed frustration over government efforts to finalize legislation that would suspend ongoing corruption proceedings against Berlusconi.”

March 2007: “Ugandan judges agreed to call off a strike after President Yoweri Museveni wrote a letter to the judiciary, expressing regret for a March 1 siege of the Ugandan High Court. The judges went on strike to protest the incident, in which state security agents surrounded the courthouse and rearrested six defendants who had been granted bail. The defendants’ lawyer was also beaten unconscious by security forces. Ugandan judges and international legal groups decried the siege as an attack on the independence of the Ugandan judiciary.”

These doughty defenders of the rule of law deserve our support, I feel. But there’s a more personal interest at stake. What if English judges were to go on strike? What if, for example, they were so incensed at Justice Minister Christopher Grayling’s planned “crackdown” on “weak, frivolous and unmeritorious” judicial reviews (as reported in Solicitors Journal last week) that they decided it represented an unwarranted assault on the independence of the judiciary (which it doesn’t, it’s just political noise)? As with any strike, there would be consequences. Cases would pile up, the listing officers would have to twiddle their thumbs, barristers’ clerks would exchange despairing anecdotes about returned briefs and idle silks overdoing long lunches; and Pommeroy’s wine bar would be full of unused counsel wondering what on earth to do with themselves, or bragging improbably about their busy non-court paperwork.

Of course it would never happen. But if it did, there’s one class of professionals whose very existence would be called into question.

The law reporters

For what can a law reporter do, if there is no law to report? The great common law tradition of England is founded on the notion that judges develop the law, incrementally, precedent by precedent, in their judgments. If judges don’t give judgments, reporters can’t report them. 

Only last week, one of our most senior judges, the President of the Supreme Court, Lord Neuberger, reiterated the crucial role played by law reporters in the development of the common law, by providing clear, accessible, reliable reports of precedent-setting cases. (BAILII lecture “No Judgment, No Justice”, reported here.)

Although law reporting does not play such a role in most of the jurisdictions discussed above, the fact remains that in a democratic society which respects the rule of law, the administration of justice depends on a number of independent, impartial professionals. Of these, judges are clearly the most important. But for a justice system to work, all the professionals in it need to be professionally motivated. Their status must be protected, if necessary by the extreme measure of going on strike. Despite the apparent frequency of its use, as reported herein, it is not a measure to be used lightly. Let’s hope the situation in Egypt resolves itself soon. 

This post was written by Paul Magrath, Development Editor at the Incorporated Council of Law Reporting for England & Wales and is republished here with ICLR’s kind permission. To read this post in its original context on the ICLR website, click here. Carrefax

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Conceptualising Confrontation | Part 7 | Concluding Notes

This is the final part of a series of blog posts I’ve been putting out, under the rubric of ‘Conceptualising Confrontation’, since the spring of 2011. To read the other parts in the series, go to the Criminal Law page on this blog.

The sole and decisive rule can be defended. Its central premise is that convictions based on untested evidence are unfair, no matter how reliable the judge deems it to be. Far from being a concept alien to the adversarial common law trial, it is merely an expression of the right of confrontation crafted in English common law over the last three centuries. As Sedley LJ put it in Secretary of State for the Home Department v AF [2008] EWCA Crim 1148; [2010] 2 AC 269:

…it is in my respectful view seductively easy to conclude that there can be no answer to a case of which you have only heard one side. There can be few practising lawyers who have not had the experience of resuming their seat in a state of hubristic satisfaction, having called a respectable witness to give apparently cast-iron evidence, only to see it reduced to wreckage by ten minutes of well-informed cross-examination or convincingly explained away by the other side’s testimony. [see para 113]

This series of posts on confrontation has sought to develop a model of confrontation based on the complex and sensitive relationship between four core components. The right to confrontation is not inflexible – it is elastic enough to withstand a number of incursions, including restrictions on the accused’s ability to view the witness and on the form and content of cross-examination. However, I argued that the tensile strength of the right yields when the accused’s right to know the identity of his accusers is refused.

In Part 3 of this series especially, I sought to argue that the disclosure of identity of component is essential to the functioning of the right to confrontation as a whole. In this sense, this component may be described as the ‘keystone’ of the confrontational model.

Witness anonymity orders, by their very nature, reduce this keystone component to the point of non-existence. When this happens, by virtue of the component’s fundamental nature within the structure of confrontation, the other three components disappear. The accused’s only means of challenging the evidence against her, the right of confrontation, is stripped away.

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Conceptualising Confrontation | Part 6 | Anonymous Witness Evidence in English Law

In English law, the reception of anonymous witness evidence is governed by the statutory regime contained in Part III of the Coroners and Justice Act 2009 (CJA 2009) which placed the temporary powers contained in the Criminal Evidence (Witness Anonymity) Act 2008 on a permanent legislative footing. Arguably, however, a power enabling courts to receive anonymous evidence can be traced back to the 1989 decision in R v Murphy, where it was held that criminal courts had a common law power to withhold the identity of witnesses from the accused, the press and the public. Even as early as 1992, Beldam LJ felt able to say that ‘it is now well established that there may be occasions upon which the interests of justice require that the identity of witnesses should be withheld.’ (R v Watford Magistrates’ Court, ex parte Lenman (unreported) 10 June 1992 (CA). Quoted in R v Liverpool Magistrates’ Court, ex parte DPP (1996) 161 JP 43, 47)

As David Ormerod recently observed in his commentary on the provisions of the 2009 Act, ‘the evidence of an anonymous witness engages issues which are numerous, complex and controversial.’ (D. Ormerod, A. Choo and R. Easter, ‘Coroners and Justice Act 2009: the “witness anonymity” and “investigation anonymity” provisions’ [2010] Crim LR 368)

In English law, matters are further complicated by the incorporation of the European Convention on Human Rights (ECHR) into domestic law by s 1 of the Human Rights Act 1998 and all of the resultant obligations this ushers in. At the heart of the matter however, is a tension between the interests of the accused on one hand, and the interest of witnesses and of the State on the other.

From the accused’s point of view, anonymous evidence presents a number of difficulties. Firstly, anonymous evidence directly impinges on the disclosure of identity component of the confrontational model, thereby encroaching upon the remaining three components of the right. It will not be possible for the accused to fully investigate the credibility of adverse witnesses out-of-court, nor will it be possible to investigate credibility in cross-examination. Where the witness is screened, face-to-face confrontation vapourises. It will not be possible for the accused to visually identity the witness, nor will it be possible to observe her demeanour. It is also highly likely that the witness will be shielded from the gaze of the public gallery, making the proceedings visually opaque. In short, the circumstances in which the confrontational model will not go into meltdown are likely to be rare. Secondly, the accused’s ability to advance her case and undermine that of the prosecution is ‘unequal to the Crown’s’, which potentially engages her rights under article 6(3)(d) ECHR. It becomes ever more crucial that prosecution faithfully honour their disclosure obligations under ss 3-8 of the Criminal Procedure and Investigations Act 1996. Finally, there is the distinct possibility that a jury, upon learning that a witness is to give evidence anonymously, will assume that ‘the defendant is a dangerous criminal capable of serious violence.’ (C. Coleman, ‘Can justice afford witness anonymity?’ The Times June 23, 2008)

Anonymity under the 2009 Act

The genesis of the 2009 Act is of itself of interest. In the landmark House of Lords decision in R v Davis [2008] UKHL 36; [2008] AC 1128 it was held the use of anonymous evidnce was irreconcilable with the common law right to confrontation and the European Court of Human Rights’ article 6(3)(d) jurisprudence. The effect of this decision was seismic because it effectively abolished a practice, quietly carried on by the courts, which permitted the Crown to lead material evidence from anonymous witnesses. Unsurprisingly, a frenzy followed soon afterwards in the British gutter-press. ‘Anarchy’ it was said, would be unleashed ‘by barring anonymous witnesses in court trials.’ (M. Sullivan, ‘Anarchy Unleashed’ The Sun June 25, 2008) ‘Chaos in court as loony Lords spike £6m trial’, (R. Kaniuk, ‘Chaos in court as loony Lords spike £6m trial’ Star June 25, 2008) boomed the Star newspaper. Within four weeks of the Davis-decision, following only one day of parliamentary debate, the Criminal Evidence (Witness Anonymity) Act 2008 entered into force, overruling Davis and establishing the first statutory framework for the reception of anonymous evidence since the days of the Star Chamber. Following the 2008 Act’s expiry on 31 December, 2009, its provisions were adopted wholesale by the CJA 2009.

Under s 86(1) of the 2009 Act, a court is empowered to order ‘such specified measures to be taken in relation to a witness…to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.’ Section 86(2) goes on to set out a non-exhaustive list of measures for preventing disclosure of the witness’s identity. Such measures include withholding the witnesses name or other identifying details; permitting the witness to give evidence under a pseudonym; prohibiting questions that may lead to identification; screening the witness from the public and the accused; and subjecting the witness’s voice to modulation. The court’s discretion here is incredibly wide – there is no limit on the number of measures that can be applied nor are there any restrictions as to their combination. Section 86(2) equips the court with enough ammunition to neutralise each component of the confrontational model.

The granting of a witness anonymity order is dependent upon the satisfaction of three ‘conditions’ set out in s 88. Condition A (s 88(3)) stipulates that the order be necessary to (a) protect the safety of the witness or (b) in order to prevent harm to the public interest. Arguably, the former of these contingencies is directed at intimidation cases, whereas the latter will cater for situations where state agents are called to give evidence. Condition B (s 88(4)) requires that the effect of the proposed order would be consistent with the defendant receiving a fair trial. As Ormerod notes, ‘this is a provision designed to ensure ECHR compatibility.’ Finally, Condition C (s 88(5)) provides that,

… the importance of the witness’s testimony is such that in the interests of justice the witness ought to testify and –
(a) the witness would not testify if the proposed order were not made, or
(b) there would be real harm to the public interest if the witness were to testify with the proposed order being made.

Two observations can be made here. Firstly, from a drafting point of view, it would have been more logical to have made Condition C the first consideration and Crown applications for anonymity orders are governed by s 87(2). On such an application, the identity of the proposed witness can, and regularly will, be withheld from the defence, but must generally be disclosed to the court. This means that the accused will be reliant on the Crown thoroughly investigating the credibility of the witness and subsequent disclosure of anything untoward in a manner consistent with the order. The inequality between the Crown and the accused kicks-in when one looks to s 87(3) which governs anonymity applications made by the accused. Under this regime, the identity of the proposed witness must be revealed both to the court and to the Crown. As Ormerod observes, ‘the principle reason for compulsory defence disclosure…is…to enable the Crown to make inquiries regarding the witness’s credibility.’ The rub is that this ‘is precisely what the defendant is not entitled to do in the converse situation.’

Can anonymous evidence be the sole or decisive basis of a conviction?

The regime in the CJA 2009 presents a significant threat to the integrity of the confrontational model and places the accused at a distinct tactical disadvantage in relation to the Crown. Nevertheless, the 2009 Act is probably here to stay. However, the dust refuses settle over one crucial issue: can anonymous evidence be the sole or decisive basis of a conviction without infringing article 6(3)(d)?

Immediately after the decision in Davis, one would be safe in answering this question in the negative. Lord Bingham clearly stated in that case that ‘no conviction should be based solely or to a decisive extent upon the…testimony of anonymous witnesses.’ Here, Lord Bingham was merely applying the test that had been developed in the jurisprudence of the Strasbourg court since Doorson v Netherlands (1996) 22 EHRR 330 in which the court held that ‘even when [procedures are adopted to counterbalance the effects of anonymous witness evidence]…a conviction should not be based either solely or to a decisive extent on anonymous statements.’ The force behind the ‘sole and decisive’ test is obvious: it is unfair to adduce evidence that is solely or decisively supportive of the accused’s guilt in a manner that makes it impossible for the accused to challenge it.

Since the recent Supreme Court decision in R v Horncastle [2009] UKSC 14; [2010] 2 AC 373, however, the future of the ‘sole and decisive’ test is in doubt. Horncastle concerned the admission of out-of- court statements made by the complainants in each appeal. In one case, the complainant had died prior to trial: his statement was admitted via s 116(1) and 2(a) of the CJA 2003. In the other case, the complainant ran away before the trial through fear of giving evidence: her statement was admitted via s 116(1) and 2(e). The principal issue in that case was whether a conviction based solely or decisively on the statement of an absent witness infringed the accused’s rights under articles 6(1) and 6(3)(d) of the Convention.

Giving the judgment of the court, Lord Phillips held that in the circumstances ‘it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act’ (see para 117 of the judgment). This decision is in direct conflict with the ECtHR’s earlier decision in Al-Khawaja v United Kingdom (2009) 49 EHRR 1 in which the ‘sole and decisive’ test was applied to very similar facts. In so holding, Lord Phillips appears to have based the court’s rejection of the test on two grounds. Firstly, Lord Phillips stated that ‘the sole or decisive test produces a paradox. It permits the court to have regard to evidence if [it is] peripheral, but not where it is decisive. The more cogent the evidence the less it can be relied upon.’ But is it right to assume that merely because an item of evidence is decisive of guilt it is also cogent? Even if the paradox exists, Lord Phillips ignores its flipside: the more decisive the evidence, the more necessary it is for the accused to be able to test it.

The second ground is one of practicality. In Lord Phillips’ view,

…a direction to the jury that they can have regard to a witness statement as supporting evidence but not as decisive evidence would involve them in mental gymnastics that few would be equipped to perform. [see para 90 of the judgment]

In the case of hearsay evidence, this ground of objection is more persuasive since traditionally questions of evidential weight have been left to the jury. However, it would be quite possible, in the case of anonymous witnesses, for the court to consider how a reasonable jury would treat the testimony of a proposed witness on the basis of the contents of their witness statement. If the court concluded that a reasonable jury could convict solely or decisively on the basis of anonymous testimony, the application for anonymity should be rejected.

Whilst primarily concerned with the admission of statements made by absent witnesses under the CJA 2003, the decision in Horncastle may well be taken to apply to anonymous witness evidence. In an important dictum not forming part of the ratio in Horncastle, Lord Phillips stated:

So far as a sole or decisive rule is concerned, I am not persuaded that there is a difference in principle between its existence in relation to absent witness and its existence in relation to anonymous witnesses. Each situation results in a potential disadvantage to the defendant…I cannot see why a sole or decisive test should apply in the case of anonymous evidence but not in the case of a witness statement. [see para 50 of the judgment]

At the time of writing [this piece was originally written in the summer of 2010 - see update below] the Grand Chamber of the ECtHR are considering an appeal by the UK government against the decision in Al-Khawaja. The outcome of the appeal is difficult to predict. Push come to shove, the Grand Chamber has three options. Firstly, they could agree with the Supreme Court’s analysis in Horncastle and simply hold that even where the evidence in question is sole and decisive a breach of Article 6 may not automatically follow.. This is unlikely, since the court will want to save face. Secondly, the court may seek to justify the test on the basis of an extrinsic, rather than instrumental, theory of the right to confrontation, rooting the rule within a societal or dignity-based rationale. Or thirdly, they may simply affirm the existing rule more forcefully.

UPDATE ON AL-KHAWAJA v UNITED KINGDOM 

The text in this blog post was originally drafted in the summer of 2010. Since that time,  Al-Khawaja v United Kingdom went from the Fourth Section Chamber decision cited in the post above and was heard by the Grand Chamber. The Grand Chamber’s decision can be found here.

In the original draft I set out three possible ways in which the Grand Chamber would deal with the issue (see the paragraph immediately above this update). In the event, the GC went for option one. The GC held that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of Article 6. However, the court went on to say that counterbalancing factors had to be in place, including strong procedural safeguards, to compensate for the difficulties caused to the defence. 

In other words, the GC swallowed the Supreme Court’s decision in Horncastle wholesale.