Tuesday, 25 January 2011

Secrecy in Civil Cases ... (Mis)use of Libel actions ... Law Commission report

The political and legal philospher Jeremy Bentham (1748-1832) wrote - "In the darkness of secrecy, sinister interest and evil in every shape have full swing ... Publicity is the very soul of justice ... it keeps the judge himself, while trying, under trial."   This famous statement is being sorely tested by British justice.This week the Supreme Court is hearing three linked appeals which may be referred to as Al Rawi v Security Service (or just Al Rawi) - see The Guardian 24th January 2011.

In the High Court, Silber J had to decide a preliminary issue in a civil action brought against the British government by Mr. Bisher Al Rawi and 6 other claimants.  The issue was whether it was open to a court in England and Wales, in the absence of statutory authority, to order a closed material procedure for the trial of a civil claim.  Silber J decided that issue in favour of the government (i.e. Security Service and others) - here is Silber J's judgment.  In short, SilberJ thought that statutory authority was not required.  The Court of Appeal (Civil Division) was having none of this.  Statutory authority was required.   See the Court of Appeal judgment - Lord Neuberger MR, Maurice Kay and Sullivan LJJ.  According to the Court of Appeal it would be wrong  for judges to introduce into ordinary civil trials a procedure which cut across absolutely fundamental principles of open justice and the right of a person to know the evidence being adduced by the other side.  The proposed procedure would also cause problems with the established law relating to public interest immunity (PII).  The Court of Appeal left open the question of whether a closed material procedure could properly be adopted, in the absence of statutory sanction, where all the parties agreed to it, or in a civil claim involving a substantial public interest dimension. That was an issue which should be considered as and when it arose.

The preferable course in this area would seem to be for Parliament to address the matter and to enact appropriate legislation.  In November 2010, Kenneth Clarke (Secretary of State for Justice and Lord Chancellor) informed Parliament that a mediated settlement of the substantive Al Rawi civil case had been reached in relation to the 6 claimants and some 10 others.  The settlement was subject to a confidentiality requirement and no admissions of any liability were made.  Mr Clarke also announced that a green paper would be produced in 2011 to look at reforms of the way in which intelligence material was used across all types of legal proceedings.  See BBC News 16th November 2010.  It is worth nothing here that the Inquest into deaths arising from the 7th July 2005 London Bombings has encountered similar problems of the government wishing to keep its intelligence and working methods secret - see The Guardian 22nd November 2010.  

The Supreme Court blog also looks at this matter.  The Court has 9 of the Justices considering the case.  The Supreme Court website gives more details - here.

The UK Human Rights blog has been recently considering some interesting items.   Today they look at the possibility that threats of libel actions are stifling debate about factory farming.  This time it is about a planning application to develop a pig unit in Derbyshire containing 2500 sows and up to 25000 pigs. The Soil Association is objecting.  See the article - Rosalind English "Libel threatens to stifle debate about factory farming."

It has been interesting over the years to observe the a la carte approach of various governments to dealing with law reform proposals from the Law Commission.  The reform of the law of murder offers a good example of this selective approach.  The Ministry of Justice has published a report which looks at current law reform proposals and indicates which have been implemented; which will be implemented and which will not be. The eternal problem with all this is that Parliamentary time has to be found and, given the executive's dominance over the use of such time, Parliament is generally kept busy with matters of a more political nature than many of the Law Commission proposals.  The fact remains that many of these proposals would be of significant benefit to the law and to people generally.  Examples include reforms of partnership law; unfair terms in contracts; termination of tenancies; participation in crime, financial consequences of relationship breakdown between cohaibitees; capital and income in trusts etc.  Sometimes the government supports a private member's bill.  This is happening with the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill.  Generally speaking, a private member's bill needs such support to have a chance of becoming law.

Law Think looks at the Police and Social Responsibility Bill in which it sees considerable scope for politicisation of the Police.   Training of future lawyers is also a considerable concern at the present time.  With the escalating costs of a degree it is was only a matter of time before education providers started to offer 2 year instead of 3 year first degree courses.  The College of  Law has moved in that direction and this is looked at by CharonQC who has extensive experience in that field.  I dislike "crammers" personally but that seems to be the way of the future.  Taking time to apply and therefore to (hopefully) understand is also important.  "I hear, I know.  I see, I remember.  I do, I understand" - Confucius (551 - 479 BC).  He also said - "By three methods we may learn wisdom: First, by reflection, which is noblest; Second, by imitation, which is easiest; and third by experience, which is the bitterest."

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