Tuesday, 15 March 2011

Prisoners votes: Superior Courts: Bradley Manning: European Arrest Warrants: Draft Defamation Bill

Supreme Court of the U.K.
Prisoners and Voting has been in the news a lot recently and has been covered on this blog (e.g. here).  It now appears that the British government has requested the European Court of Human Rights Grand Chamber to consider the case of Greens and M.T. v U.K..  This is a tactic aimed at, if at all possible, persuading the court to go back on its decision in Hirst No.2.  The UK Human Rights blog looks at this in greater depth - see "Unappealing tactic on prisoner votes?"  One suspects that the Government will be investing a considerable amount of legal energy into trying to overturn Hirst given the Prime Minister's statement that the thought of prisoner's voting made him "physically ill."

The phrase "Superior Court of Record" has been used a few times recently by Parliament - e.g. the Upper Tribunal was created by the Tribunals, Courts and Enforcement Act 2007 and is designated as a "superior court of record."  The modern Court of Protection
is similarly designated (Mental Capacity Act 2005 Part 2).  The Special Immigration Appeals Commission (SIAC) was designated some time after its creation: Anti-terrorism, Crime and Security Act 2011 s.35.  Does this phrase mean that a body designated as a "superior court of record" cannot be judicially reviewable by the High Court?  Although the phrase has been used for many years in relation to courts, the meaning is not entirely clear.  Generally, "superior courts" (e.g. the High Court) have powers to enforce their decisions by using contempt of court powers.   The term "superior court" is used by way of contrast with "inferior courts" (e.g. Magistrates - which have statutory contempt powers used to maintain order in proceedings).  The words "of record" may have historical connotations from the times when records were kept on vellum.  Whether the phrase immunises the body from judicial review is a tricky issue.  The Court of Appeal (Civil Division) in a very lengthy and detailed judgment has said that it does not have that effect though judicial review will only be available in certain limited situations.  The Scottish Court of Session has said that it does not have that effect.  The matter is now being argued over four days in the Supreme Court with seven Justices sitting.  Fuller details on this may be read on the Supreme Court blog.

R (Cart) v Upper Tribunal and others [2010] EWCA Civ 859

Petition of Blajosse Charlotte Eba [2010] CSOH 45 (Court of Session Outer House) and also
Court of Session (Inner House)- see the judgment

Some time ago Jonathan Mitchell QC - (of the Scottish Bar) - looked at this important matter - see his blogpost  for 15th December 2009.   As Mr Mitchell pointed out - "That proposition is unconstitutional: it assumes that areas of public life may be placed beyond the law. If correct, presumably the Home Office could be erected into a ‘superior court of record’ and so put beyond judicial scrutiny; ...."

A third case, also raising the same point of law, will be decided in the same proceedings: R (MR) v The Upper Tribunal.

One cannot help but think that a great deal of very expensive litigation might have been avoided if Parliament made its intentions crystal clear about whether these courts and tribunals should be judicially reviewable and, if so, on what grounds.  Reliance on an essentially archaic phrase of uncertain meaning - "superior court of record" -  is deeply unsatisfactory.

Bradley Manning - some time ago Law and Lawyers took a look at plea bargaining and mentioned the case of Bradley Manning who is held in a United States prison.  There have been some disturbing reports about his treatment by the authorities - e.g. "Stripped naked every night ..." - Guardian 11th March.  As CharonQC points out this COULD come within the scope of cruel and unusual punishment and, if so, would appear to be unconstitutional in U.S. law - (Constitution 8th Amendment). 

European Arrest Warrants - almost daily stories are now appearing about the undesirable aspects of these warrants.   Here is another such story - "Greek Justice is no justice for the Briton left in limbo" - Telegraph 13th March 2011 (Andrew Gilligan).

Defamation Bill - the government has issued a draft Defamation Bill which is open for consultation.  The Consultation Paper (including draft Bill) are available here.  See also "The Defamation Bill - few surprises and little radicalism" - Legal week.  "Jury's out: government unveils draft libel reforms" - Solicitor's Journal 15th March.  One aspect of the Bill is that juries in defamation cases will become very very rare - which, in practice, will probably will mean never.  Currently, these cases are one of the few remaining situations in which a jury is used in a civil action.


  1. I find it hard to believe that the UK, after over 5 years of failing to fully comply with Hirst v UK (No2), is seeking to overturn the ruling by way of Greens and MT v UK. The UK lost the case in 2004 before the Chamber, and lost its appeal in 2005 before the Grand Chamber. According to the Article 44 (1) of the European Convention on Human Rights "The judgment of the Grand Chamber shall be final". So, not only is the UK seeking to overturn Hirst v UK (No2) but the UK is also rewriting the Convention to suit itself!

  2. ... but don't forget there is Article 43 which enables the government to request that the Grand Chamber considers the Greens and MT case. [Their request must pass a panel of 5 judges but I would be surprised if it was turned down]. There is more discussion of all this on the UK Human Rights blog to which I have commented this morning.

  3. An appeal to the Grand Chamber should only be granted in exceptional circumstances. In Frodl the Grand Chamber rejected an appeal. Interestingly, the UK largely ignores this ruling and yet it refers to the Hirst test. I have seen the UK grounds of appeal, and there is not one point of law or reason for the UK's appeal to succeed. The grounds simply rehash the arguments already lost in Hirst No2.

  4. ... Art. 43 states:

    1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.

    2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a European Convention on Human Rights serious issue of general importance.

    3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment."

    43(1) refers to exceptional cases not to exceptional circumstances. I am not entirely sure how "exceptional cases" is interpreted and the panel of 5 may not view Greens and MT as such a case. However, my feeling (no more) is that they will.

    43(2) uses the word "shall" and it seems likely that the criteria will be met.

    However, we shall see ! I suspect that the government will throw some heavyweight legal talent at this.

  5. "I suspect that the government will throw some heavyweight legal talent at this".

    I'm the king of the jungle, the jungle VIP (Very Important Prisoner), and already I note from the UK's submission to the Committee of Ministers and Grand Chamber that I have caught something in my trap.

    For example, I did warn the Political and Constitutional Reform Committee that the motion as it stood was unlawful. It claimed that the Court held that there had been no debate. A reading of Hirst v UK (No2) proves that this was not held by the Court. Therefore, those responsible for drafting the motion are guilty of contempt of Parliament by misleading Parliament. It also means that the thinking ‘If we go through the sham of conducting a debate and reject the motion then that’s the end of the matter” is flawed.

    I wonder what are the legal consequences of altering the text of the motion and presenting a different version to the Committee of Ministers and Grand Chamber? Someone has realised that my legal advice was legally right and is now belatedly trying to correct the issue. There is a saying ‘When in a hole, stop digging’. To present one version in the House of Commons and another version in Strasbourg may have escaped some people’s attention, but one of my strengths is paying attention to detail and this one leapt straight out at me. It is one thing to mislead Parliament and quite another to attempt to mislead Strasbourg.