A miscellany of items in the news at the start of 2022 ....
Grenfell:
The Grenfell Tower Fire Inquiry continues almost 5 years after the devastating fire on 14 June 2017. The Phase 1 report was issued in 2019 - Phase 1 report - withe government accepting in principle the inquiry's recommendations - Grenfell Tower Inquiry Phase 1 Report: government response - GOV.UK (www.gov.uk).
It has been reported that the Inquiry is to examine some former government Ministers and also the serving Secretary of State - The Guardian 4 January. An important witness is likely to be Lord Pickles who was Secretary of State for Communities and Local Government from 2010 to 2015.
Coronavirus / Omicron:
Omicron continues
to almost dominate the news. Apart from additional restrictions imposed on 10 December, the government has resisted further measures for England even though there are serious concerns about the impact on the NHS - Boris Johnson Confirms There Will Be No New Covid Restrictions As Cases Exceed 200,000 (politicshome.com) - Law and Lawyers: Coronavirus legislation approved 14 December 2021 (obiterj.blogspot.com).The House of Commons Library has issued a very helpful - Coronavirus: A history of English lockdown laws - House of Commons Library (parliament.uk)
Historical homosexual offences:
It has been announced that Past convictions for certain homosexual offences will be "wiped" from records and pardons granted - https://www.theguardian.com/world/2022/jan/04/past-convictions-for-homosexual-activity-to-be-wiped-from-records-patel-to-announce. It is reported that this will be done by the government bringing forward an amendment to the Police, crime, sentencing and courts bill to broaden the criteria to include any repealed or abolished civilian or military offence that was imposed on someone purely for, or due to, consensual same-sex sexual activity. Details of the Bill at Police, Crime, Sentencing and Courts Bill - Parliamentary Bills - UK Parliament
Ghislaine Maxwell / Jeffrey Epstein / HRH Prince Andrew:
The conviction, in New York (USA) of Ghislaine Maxell has received a lot of media attention. It was reported that Maxwell would appeal but on what grounds was not made especially clear. A further twist in this story is that an application is to be made for a retrial because of comments by a juror - Ghislaine Maxwell: Lawyers call for retrial over juror comments - BBC News
The CIVIL action in the USA by Virginia Giuffre against Prince Andrew has raised an interesting point about the 2009 settlement of a claim, in Florida, by Giuffre against the late Jeffrey Epstein (found dead in a cell in New York on 10 August 2019).
The Prince denies the claims made by Virginia Giuffre but his lawyers have argued before the very experienced Judge Lewis A. Caplan that the 2009 settlement ended any possible claims against any other "potential defendants" - a term which, they argue, includes the Prince. The terms of the 2009 settlement may be read at
#32, Att. #1 in Giuffre v. Prince Andrew (S.D.N.Y., 1:21-cv-06702) – CourtListener.com
Judge Kaplan will have to decide the point and it will involve questions relating to the construction and interpretation of the written document. His decision is expected in the near future. [Legal commentator David Allen Green draws attention to a distinction between construction and interpretation - see A legal look at the Giuffre settlement agreement on which Prince Andrew is seeking to rely – The Law and Policy Blog (davidallengreen.com). The distinction is not entirely easy to disentangle and, at times, both terms are used almost interchangeably].
More generally, the matter has raised interest in settlements. Settlements of civil actions are commonplace because, for many proper reasons, one or more parties to a case do not wish it to continue any longer than it has to - To Settle or Not to Settle? That Is the Question | Lawyers.com
Settlements are frequently made without admission of liability on the part of the defendant. It is important that no assumptions about liability be made simply because a defendant chooses to settle rather than slog it out in court. Great care needs to be taken over the drafting of any settlement. It can be a legal minefield and that is especially so in cases where there are multiple defendants.
A Garter for Tony Blair:
Yet another story is the Knighthood for the former Prime Minister Tony Blair. It was announced that he is to become a Member of the Most Noble Order of the Garter - KG . According to The Order of the Garter | The Royal Family knights are chosen "personally by the Sovereign to honour those who have held public office, who have contributed in a particular way to national life or who have served the Sovereign personally."
Many former Prime Ministers have received either peerages or knighthoods - e.g. John Major also became a KG.
Perhaps unsurprisingly, this appointment attracted a lot of adverse comment mainly due to the role played by Blair in Iraq and Afghanistan.
The military action in Iraq was legally controversial and was the subject of formal legal advice given by the Attorney General of the day - Lord Goldsmith QC. The Chilcot Inquiry expressed no opinion on the legality of the UK's involvement -
It appears from this report that Geoff Hoon (Secretary of State for Defence from October 1999 to May 2005) was told to burn a memo from the Attorney General that case doubt on the legality of the war - Geoffrey Hoon ‘told to burn memo that said Iraq invasion could be illegal’ | Geoff Hoon | The Guardian. The report notes that - "Hoon said the document was not burned. I agreed that we should lock the document securely into an MoD safe to which only he had access. For all I know it is probably still there.” The word "he" refers to Mr Hoon's principal private secretary at the time - Peter Watkins.
Criminal Damage / Acquittal / Colston statue:
Four protesters have been acquitted at the Crown Court in Bristol of criminal damage to the statue of slave-dealer Edward Colston - Sky News 5 January 2022.
Was this an example of a jury acquitting against the weight of the evidence? We cannot know for sure but, for my part, I don't think that such a claim is sustainable. The jury will have been directed as to the law by the trial judge. It therefore appears that the jury may have found that there was a lawful excuse on the facts of the case. We do not actually know this since juries do not give reasons and their deliberations in the jury room are not known.
It is reported that the Attorney-General is considering a reference to the Court of Appeal (Criminal Division) - The Guardian 7 January. Presumably, the aim of such a reference would be to ask the court to clarify the scope of "lawful excuse."
Details of points put by counsel for one of the defendants are reported by Doughty Street Chambers. One argument put by the defence was that ‘prevention of crime’ could be relied upon as a defence and that the jury could consider whether the presence of the statue itself constituted an offence under section 5 of the Public Order Act 1986.
To some extent, the Criminal Damage Act 1971 deals with "lawful excuse" - see Section 5 - but section 5 does not rule out other examples of lawful excuse.
Section 5(2)(a) states there is a defence of lawful excuse - "if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances; ..." By section 5(3), "it is immaterial whether a belief is justified or not if it is honestly held."
If such belief in consent is argued then it does not matter what our individual views are. Whether or not we think that chucking Colston's statue into the harbour was justified, the Act of Parliament defining criminal damage states unequivocally that "it is immaterial whether a belief is justified or not if it is honestly held."
Would-be protesters should not think that these acquittals form some kind of precedent. They do not. Everything depends on the facts of a case. Only decisions of the higher courts on points of law constitute precedents. If the Attorney-General does refer the matter to the Court of Appeal then the court's judgment on the law would form a precedent but would not reverse the acquittals.
Some of the media statements from politicians are reported - see https://www.theguardian.com/uk-news/2022/jan/06/minister-grant-shapps-crackdown-court-colston-four-statue and https://www.theguardian.com/law/2022/jan/06/colston-four-acquittal-raises-doubts-about-10-year-jail-term-proposal
The Police, Crime, Sentencing and Courts Bill currently before Parliament will alter the mode of trial provisions for criminal damage - Clause 47 (parliament.uk).
Here is the view of historian David Olusoga who gave evidence for the defence - https://www.theguardian.com/commentisfree/2022/jan/06/britains-shameful-slavery-history-matters-thats-why-a-jury-acquitted-the-colston-4
The Colston Four and ‘the right side of history’ – The Justice Gap
Earlier post 16 June 2020 - https://obiterj.blogspot.com/2020/06/lessons-from-past-statues-and-memorials.html#more
Addition 9 January: Colston summing up: those legal directions in full - BarristerBloggerBarristerBlogger | Mobile Version
Addition 14 April 2022 - the Attorney General announced that questions of law will be referred to the Court of Appeal - Attorney General seeks clarification on the law following protest case - GOV.UK (www.gov.uk). See also Did-the-Colston-trial-go-wrong.pdf (policyexchange.org.uk)
Addition 28 September 2022 - Attorney General reference - European Convention on Human Rights - Attorney General’s Reference No. 1 of 2022 - Courts and Tribunals Judiciary
The Gay Cake case:
The European Court of Human Rights has ruled inadmissible the so-called "Ashers 'gay cake'" case - Ashers 'gay cake' case: European court rules case inadmissible - BBC News. The court ruled that the case was inadmissible because the applicant (Mr Lee) had failed to exhaust all options in the UK courts.
Here is the UK Supreme Court's judgment in the case - (an appeal from Northern Ireland) -
Here is a report of the ECtHR decision. At para. 69 the court said - "The applicant in the present case did not invoke his Convention rights expressly at any point in the domestic proceedings. Instead, he formulated his claim by reference to the" [Northern Ireland legislation]. "He now contends that (a) he raised his Convention arguments in substance, as the domestic law provisions relied on were enacted to protect his rights under Articles 8, 9, 10 and 14 of the Convention; and (b) that in any event the violations now complained of only crystallised with the handing down of the judgment of the Supreme Court." The Court was not persuaded by either submission.
At para 68 the court noted that "the specific Convention complaint presented before it must have been aired, either explicitly or in substance, before the national courts. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument."
In the light of the government's consultation about reforming the Human Rights Act 1998, this point about "subsidiarity" is noteworthy.
6 January 2022
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