Supreme Court this week

An interesting week in the Supreme Court .  The court (with reluctance) held that it may sit in closed session to consider a 'closed judgment' of the lower court and the next day did so.  Also, there was an interesting decision on defences under section 1(3) of the Protection from Harassment Act 1997.

Secrecy:  On 19th March, in relation to Bank Mellat v Her Majesty's Treasury, the Supreme Court issued a statement:

(Quote) The substantive appeal in this case relates to whether directions made by the Treasury under Schedule 7 of the Counter-Terrorism Act 2008 were in breach of, inter alia, the rules of natural justice, and/or Article 6 ECHR, and/or the procedural obligation in A1P1 ECHR.

There has been considerable interest in a preliminary matter, covered by oral submissions to the Court today, on whether a ‘closed judgment’ from the lower courts could in principle be considered by the Supreme Court, and if so, whether the Justices in this instance wish to do so.

The following message has been sent to the parties in this appeal this evening:


For reasons, to be given later, the Court has decided that it has jurisdiction to consider the closed judgment of Mitting J, which it would only do if, during the conduct of the substantive appeal in open court, it was persuaded that it was necessary to do for the purpose of fairly disposing of the appeal. On the basis of the submissions it has so far received, the Court is not convinced that it is so necessary.

In anticipation of such a possibility, counsel for the respondent are requested to send to the special advocates [who act for the appellant] by 10.00 am tomorrow, Wednesday 20th March 2013, a written statement, setting out those parts of the closed judgment on which reliance may be placed, and summarising the nature of such reliance.

The Court has also asked that the special advocates attend the remainder of the hearing. (End Quote)

The Guardian - Supreme Court rules it can examine secret judgments by lower courts.  

Despite being unconvinced of the need for a closed session, it transpired that on Thursday 21st March the court actually held a closed session - The Guardian - UK Supreme Court goes into secret session for first time

See UK Supreme Court blog 21st March - Supreme Court elaborates on its decision to consider a closed judgment, if necessary   In a further statement in open court, the Supreme Court said - "We have reluctantly decided that we cannot consider the closed judgment without having a closed hearing, as otherwise the contents of the closed judgment would be revealed to the public, including Bank Mellat and its representatives."  This decision is a 6 to 3 majority. 

No doubt in due course when we have completed the closed hearing and Mr Brindle [for Bank Mellat] has made his closing submissions, and we in due course consider the matter and give our judgment, we will have quite a few things to say about this unhappy procedure 

Closed hearings are permissible, by statutory authority, in certain instances.  One example is in the Special Immigrations Appeals Commission.  It would be very odd if the Supreme Court could not hear an appeal because the lower court had issued a closed judgment.  However, there appears to be no statutory authority exactly on the point.  The full  reasoning of their Lordships is awaited with considerable interest.  The Justice and Security Bill - currently before Parliament - will make 'closed material procedures' available in civil cases before the High Court and appellate courts.

UK Human Rights blog - Historical first as Supreme Court boots Iranian bank out of secret hearing
- " ... the Government, which is being sued, gets to stay in court whilst the person doing the suing – and their lawyers – have to leave. The judges then hear security sensitive evidence which is potentially central to the case."

Supreme Court - statements relating to the Bank Mellat case

Harassment:  On 20th March, the court handed down judgment in Hayes v Willoughby [2013] UKSC 17.  Mr Willoughby was the appellant and his appeal was dismissed by a majority of 4 to 1.  The dissenting justice was Lord Reed.

Willoughby (W) had been an employee of a company operated by Hayes (H).  W carried out a campaign against H's management of the companies.  The campaign involved sending letters to the Official Receiver, the Police and the Department of Trade and Industry.  Those bodies investigated and found nothing to substantiate W's allegations but W continued and made intrusions into H's private life.

The Protection from Harassment Act 1997 makes harassment (defined section 1) both an offence (section 2) and offers a civil remedy (section 3).  Under section 1(3) it is a defence for a person to show (a) that it was pursued for the purpose of preventing or detecting a crime; (b) that it was pursued under any enactment or rule of law, or (c) that in the particular circumstances, the pursuit of the course of conduct was reasonable.

At trial, the judge found that W's conduct was harassment but that section 1(3)(a) applied because W genuinely believed in his allegations.  H's appeal was allowed by the Court of Appeal which held that  (1) only the purpose of the conduct not the purpose of the alleged harasser was relevant, and in this case it was not reasonably or rationally connected to the prevention of crime; and (2) the prevention of crime had to be the sole purpose of the alleged harasser, and the intrusions on Mr Hayes’s privacy were not related to that purpose.

Of those findings, (2) would be relatively easy to deal with provided that prevention of crime was the alleged harasser's main (or principal or dominant) purpose even if not the sole purpose.  The Supreme Court had this view - (para 17 of Lord Sumption's judgment).    Lord Sumption said:

Mr Allen QC (who appeared for Mr Hayes) did not attempt to defend this particular ground of the Court of Appeal’s decision and in my view it was indefensible. A person ’s purposes are almost always to some extent mixed, and the ordinary principle is that the relevant purpose is the dominant one. 

The first finding was more difficult.  The Court of Appeal had introduced a problematic distinction between purpose of the conduct and the purpose of the alleged harasser.  They had also introduced the words 'reasonably or rationally.'

The Supreme Court held that there was no distinction between the purpose of the conduct and the purpose of the alleged harasser as such acts have no purpose other than that of their perpetrator.

For the Supreme Court majority, the issue was by what standard was the person's  purpose to be assessed?  A wholly objective test was not consistent with the wording or purpose of the Act.  A test of reasonableness was not included in section 1(3)(a) but it was in other sections and to import reasonableness into 1(3)(a) would make 1(3)(c) otiose.  Furthermore, a wholly subjective test was problematic

Those who claim to be acting for the purpose of preventing or detecting crime may, at a purely subjective level, entertain views about what acts are crimes and what steps are calculated to prevent or detect them which have no relation to reality. Mere existence of belief, however absurd, in the mind of the harasser that he is detecting or preventing a crime, cannot justify him persisting in a course of conduct which the law recognises as oppressive. Some control mechanism is therefore required, even if it falls short of what is objectively reasonable.

The majority found the control mechanism in the concept of 'rationality.'  

Reasonableness is an external, objective standard applied to the outcome of a person’s thoughts or intentions. A test of rationality only applies a minimum objective standard to the relevant person’s mental processes. It imports a notion of good faith in requiring some rational connection between the evidence and the ostensible reasons for the decision, and an absence of arbitrariness, capriciousness or reasoning so outrageous in its defiance of logical as to be perverse. If the alleged harasser has rationally applied his mind to the material suggesting criminality and formed the view that the conduct said to constitute harassment was appropriate for its detection or prevention, the court will not test his conclusions by reference to what view a hypothetical reasonable man in his position would have formed. If he has not done so but proceeds anyway, he acts irrationally. He will not have a relevant purpose and there will be no causal connection between his purpose and the conduct constituting harassment. Such a test would in any event apply to public authorities. It is not a demanding test, and it is hard to imagine that Parliament could have intended anything less.

On this basis, the court found that the continuance of W's conduct after June 2007 was irrational.  

He was no longer guided by any assessment of evidence, nor was there a rational connection between his supposed purpose and acts. By persisting in pressing his allegations on the Official Receiver and other investigatory bodies long after they refused to deal with him, he was acting in way that was incapable of furthering the alleged purpose.

As Lord Reed (dissenting) identified, difficulty with this may well arise at criminal trials where juries have to be directed on the law.  For Lord Reed, reasonableness was not required by section 1(3)(a) but he rejected the idea that Parliament intended to impose a rationality requirement.  He gave 3 reasons for this:

(1) Parliament did not provide for any rationality test.  The purpose for which a course of conduct is pursued is ... ordinarily ascertained by reference to the intention of the person who pursues it. To introduce a requirement of objective rationality requires the court to read in words which Parliament did not use.  Later, Lord Reed said:  "I cannot readily bring to mind any example, in any context, of a statutory requirement not of reasonableness but of rationality, the latter being understood as conceptually distinct from the former."

(2) A statute should not be construed as extending criminal liability beyond the limits which Parliament itself enacted.  "It is trite that a statute is not normally to be construed as extending criminal liability beyond the limits which Parliament itself made clear in its enactment."

(3) Criminal liability would turn on the subtle distinction between irrationality and unreasonableness, which could create particular difficulties in giving clear directions to juries.   " ... bearing in mind ... that section 1(3)(a) and the other provisions to like effect limit the scope of criminal offences, some of which are triable on indictment, I would be slow to infer that criminal liability was intended to turn upon the subtle distinction between what is unreasonable and what is irrational."

"Are defendants to be convicted on the basis that their conduct has overstepped the boundary separating the unreasonable from the irrational? Are juries to be required to determine where that boundary lies? It may be that appropriate directions can be devised by judges, although I do not underestimate the difficulty of devising directions which accurately reflect Lord Sumption’s analysis."

and later:

In any event, a meaningful jury trial requires not merely that the jury is given a legally accurate direction, but that it is one which they can make sense of in practice and apply with confidence to the evidence they have heard. I am not convinced that Parliament can have intended that a jury should be expected to understand and apply the sophisticated distinctions which Lord Sumption seeks to draw.

There is much to be said for Lord Reed's dissent which recognises the difficulties which the introduction into criminal law of subtle distinctions bring about.  The law has to be as straightforward as possible and must be readily understandable by juries and magistrates.  Above all, rationality is not within the wording of the stature itself.  Had Parliament wished to legislate for this then it could have done so.  Of course, Hayes v Willoughby arose from an action (under section 3 of the 1997 Act) for damages for harassment and for an injunction to restrain its continuance.  It was not a criminal case but the defences in section 1 apply to the criminal offence (section 2) and also to actions for a civil remedy under section 3.

Protection from Harassment Act 1997