Dominic Grieve – 2019 Speech on Brexit

Below is the text of the speech made by Dominic Grieve, the Conservative MP for Beaconsfield, in the House of Commons on 1 April 2019.

Thank you, Mr Speaker. I will try to be brief.

Of the four motions before us, two relate to substance and two relate to process, and they cannot be easily disaggregated. I have signed motion (E) and motion (G), motion (E) being that of the hon. Member for Hove (Peter Kyle). As I have said on many occasions, in view of the circumstances that have arisen, the idea that we can legitimately take the people of this country out of the European Union without consulting them as to whether the deal that we are offering them is one they want seems to me very odd indeed. The reality is that everything we have been talking about this evening, on the two substantive motions in particular, bears almost no relation to what was advanced by those advocating leave in the 2016 referendum campaign.

Equally, this House has said repeatedly that it does not believe in a no-deal Brexit. That is why I support the motion of the hon. and learned Member for Edinburgh South West (Joanna Cherry)—because we have to do everything to stop it, given that the evidence is overwhelming that leaving without a deal would be catastrophic. I realise that this is sometimes a very difficult issue. On Friday night, I found myself giving an audience the Government’s own figures on the administrative burden on business of leaving without a deal, which is £13 billion per annum. That may be too high or it might be too low, but it is a reasoned estimate. That group of people, some of whom say they support my party and therefore the Government, were shouting “Liar” at me. This, I am afraid, is the point where reasoned debate has wholly evaporated. The House is very clear that what we have here is a real risk to this country’s integrity in future, and that is why no deal must be prevented.

Let me now turn to the two substantive motions. Looked at straightforwardly, I think that both offer a better destination for this country than what the Prime Minister negotiated. That is first because they address the Northern Ireland issue, and do it a way that covers the integrity of the whole United Kingdom and does not separate Northern Ireland out from it, which seems to me to be an advantage; and secondly, because the concessions they make to our participation or deeper integration with our EU partners even after we have left do not come at a cost that people will notice when we are out. I agree entirely with my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that, in reality, the trade deals that we were told we would have, and which were celebrated, are going to be absolutely marginal compared with the effect on our wellbeing now and what we are going to lose.

For those reasons, I look with favour on both motions. They are both, as I said, very far removed from what was being trumpeted in 2016, which unfortunately was an utterly misleading vision that the United Kingdom could have its cake and eat it—could have the benefits of membership and all the freedoms that go with not being a member. That is the basic problem that this House is going to have to grapple with. I will not vote against the two motions of substance, which seem to me to be moving us probably in the right direction.​

I am anxious about the risks of our concluding a political declaration and having a very limited timeframe—to 22 May, with probably no extension—to resolve fully the issues within it to the satisfaction of this House. I have a serious concern, first, that that can be done; and secondly, that it can be done to the satisfaction of the public. That is why there is a need for a linkage between the preferred option and consulting the public. I do not want to say any more about that now—I want to sit down and allow others to speak.

However, I do want to emphasise my willingness to work with Members of this House who have promoted both these motions, in my determination to try to bring this sorry saga to an end. But in saying that, I want to emphasise that the House has to be very careful about simply jumping on something that it thinks we can all agree on without thinking through the consequences of the process and making sure that the process ends up satisfying the House itself and the electorate, and leading to the right outcome.

Dominic Grieve – 2019 Speech on Brexit

Below is the text of the speech made by Dominic Grieve, the Conservative MP for Beaconsfield, in the House of Commons on 29 January 2019.

I cannot deny that I have found the process of Brexit one of the most wearisome and unpleasant periods of my time in this House, but the cloud has a little bit of a silver lining. I find this afternoon that an amendment I first proposed last summer, which was vehemently denounced by some of my hon. and right hon. Friends as being about to break the party apart, and that I brought back just before Christmas, and passed with the help of many hon. and right hon. Members, now appears to have something to commend it to the very people who denounced it then. I note with pleasure that amendment (n) appears to command some support among Conservative Members, and from my right hon. Friend the Prime Minister, but it could not even have been brought up for consideration if the system that had been devised for this House, simply to have motions in neutral terms be unamendable, had been followed. I derive some slight satisfaction from that.

I now tempt the House to accept another amendment, amendment (g), and I will briefly explain why. We are mired in complete paralysis. The deal that my right hon. Friend the Prime Minister brought back, which I suspect is probably the best deal available, does not commend itself to many of my hon. and right hon. Friends. If they voted to leave, it does not meet their dreams at all. What about somebody like myself? When I look at the deal objectively, from the point of view of an ex-remainer, I simply cannot understand how we are going to be better off leaving on such terms than remaining in the European Union.

Sir William Cash

Will my right hon. and learned Friend give way?

Mr Grieve

No, I am going to make some progress, if I may.

In those circumstances, we have to find a way forward. Throughout the times that I have tabled amendments for this House to consider, I have tried to avoid objectives ​and look at process. Frankly, we could do with more days of debate of this sort unless or until we reach agreement. Of course, if we do reach agreement, with this amendment we can have another business of the House motion and we will just drop the remaining sitting days. It is rather sensible to set aside six days between now and the end of March when this House can debate, free of the interference of government, which I have to say I am afraid has sought consistently to restrict debate into an absolute straitjacket of what it wanted to hear and nothing else. If we have those days, it will help us, just as we are actually starting to tease out this afternoon, to make a little bit of progress towards compromise.

Of course my views are well known about the desirability of a further referendum, and I will come back to them right at the end, but I am perfectly aware that many Members in this House do not agree with that, even if they also share my regret at what we are doing in leaving the EU. But that in no way diminishes for me the value of these days, and I agree entirely with the Father of the House and with my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) that the idea that this is some constitutional abomination simply does not bear scrutiny; we are in control of our Standing Orders and changing them in this way to get the debates we need is entirely in keeping with the traditions of this House and the fact that the Government, in this area, simply do not enjoy the majority that some Governments have normally used to suppress it.

Sir William Cash

Somebody who refers to national suicide, as my right hon. and learned Friend did the other day, is now moving towards a proposition that involves constitutional homicide, but let me put it another way. Does he agree that he voted for the European Union (Withdrawal) Act 2018, which states unequivocally that the European Communities Act 1972 will be expressly repealed? Therefore, is what he is now saying going to contradict that, because he does not want the 1972 Act to be expressly repealed—yes or no?

Mr Grieve

I say to my hon. Friend that he is familiar enough with the constitutions of this country and this House to know that this House can propose, debate, pass and revoke laws—we do it quite often sometimes, including laws that have never actually been implemented. So this House can do what it thinks is right at any given moment, and that is the flexibility we need. I tabled my amendment in the spirit of trying to reach some sort of understanding of where the majority might lie to bring this unhappy episode to a conclusion. I have also made it clear that in doing that one has to keep in mind and respect the decision of the earlier referendum, but that does not mean—I will come back to this in a moment as well—that one simply says that one is going to drag the country out on terms that nobody very much seems to support and towards a future that on the face of it looks pretty bad. To do that would be an abdication of our responsibility.

My right hon. Friend the Prime Minister has also said that this House should say what it wants and what it does not want. May I say to her that knowing what one does not want can be quite a good starting place to understanding where compromise is reached over what one is prepared to accept? There are amendments down this evening on no deal that I shall support, because it is ​quite clear to me that this House utterly rejects no deal. Therefore, I will vote for those as well and I ask the House to vote for my amendment, which is neutral in objective but which will give us the opportunity we need to continue developing the debate we have to have if we are to resolve this matter sensibly.

There is then amendment (n), which I have to say is quite tempting in some ways. Our party has deep divisions over Brexit, and we know the pleasure we get when, because of the respect and affection we have for each other, we can all vote together. We did it when we supported my right hon. Friend the Prime Minister on the motion of confidence. For that reason, it is very tempting to be told that we should just vote for amendment (n) and send some message that we might just be close to resolving our disagreements with the EU, and doing it collectively. I have some slight anxiety about this, however.

The backstop is indeed a rather humiliating thing, which is why Democratic Unionist party Members do not like it. As a Unionist, I can understand that, to the bottom of my heart, because it highlights the fact that when we leave the EU, the EU is going to continue to have a hold constitutionally over some of the things that we do. But the truth is that the backstop is just the outward sign of a much more profound truth: that ever since we signed up to the Good Friday agreement to resolve, on a permanent basis, an outstanding constitutional issue of identity on the island of Ireland, we have bound ourselves to keep an open border. The unpleasant truth is that that is incompatible with the aim of some hon. and right hon. Friends, who want to take us to a future in which we diverge on tariffs and regulation, and which inevitably therefore leads to a hard border having to be introduced.

I fear that our being asked to support amendment (n) this evening is a piece of displacement activity—something in which I am afraid the House has specialised in the past two and a half years, and which one often sees young children doing when they are asked to face up to something they do not like. That seems to me to be what the amendment is about because, first, it is quite clear that the EU will not negotiate on it—although I do accept that if you do not ask, you do not get—and secondly, even if we were to get the backstop removed, the trouble is that what some of my hon. and right hon. Friends are asking for is inevitably going to bring this conflict into the open once we are gone. If I may gently say so to them, this is one of the issues that we need to debate in those six days that I hope I may have set aside for the House. There is a lack of trust about future intention that makes 29 March completely irrelevant, because the truth is that the disputes about the nature of our state and how we relate to those around us will resume immediately afterwards.

For those reasons, I am afraid I cannot support amendment (n), but I am delighted to have provided—if only by my previous amendment, at least—an opportunity to this House to start having a dialogue. I very much hope we can pursue that.

Dominic Grieve – 2013 Speech on the Rule of Law

dominicgrieve

Below is the text of the speech made by Dominic Grieve, the Attorney General, at the 18th Annual Conference and General Meeting of the International Association of Prosecutors in Moscow on 9 September 2013.

It gives me great pleasure to speak today at the 18th Annual Conference and General Meeting of the International Association of Prosecutors (IAP).

The aims of the IAP – to promote the rule of law, fairness, impartiality and respect for human rights and to improve international cooperation to combat crime – demonstrate the powerful and influential role which the prosecutor can play within society.

A prosecution service which is fearless and protective of its independence and impartiality, which is free of political control and direction, will be a bulwark for freedom and liberty.

As Attorney General of England and Wales I superintend prosecutions and am answerable to Parliament for their conduct. The primary prosecution services in England and Wales – the Crown Prosecution Service and Serious Fraud Office – are, however, wholly free of political control and direction. They bring prosecutions only when a two stage test has been met:

Is there is sufficient evidence to provide a realistic prospect of conviction?

And if there is; is a prosecution required in the public interest?

It matters not if a government minister, politician or even the Prime Minister demands a prosecution be started – if those two stages have not been met, then no prosecution will follow.

Political aims, petty vindictiveness or vendettas have no role to play. This process helps uphold the rule of law.

Although prosecutions are the responsibility of independent prosecuting authorities, I do not feel a fraud or interloper appearing here before so many distinguished prosecutors. I am proud to call myself a prosecutor.

As Attorney General I do in fact have a number of prosecutorial functions, for example, in certain criminal cases – terrorism, possession of explosives, offences with an international angle – my consent to prosecution is required.

I also appear regularly in the Court of Appeal to seek the review of sentences imposed in criminal cases which I believe to be too low.

When I perform these prosecutorial functions, I act wholly independent of Government. Indeed, one of my predecessors, Lord Simon, said:

The Attorney General should absolutely decline to receive orders from the Prime Minister or cabinet or anybody else.

While that may not do much for my political career, that is an important protection for the rule of law in the United Kingdom and one that I will uphold and staunchly defend.

The UK recognises the importance of developing the rule of law, legal institutions and the capacity of countries to deal with legal matters, as crucial to our mutual national interests. The ‘Golden Thread’ of the rule of law runs through not only the ability to prosecute serious crime and terrorism but increasingly wider agendas such as prosperity, development and growth.

In 2010, one of the United Kingdom’s most distinguished jurists in the last hundred years, Lord ‘Tom’ Bingham, published the seminal work ‘The Rule of Law’ (I suspect we will hear more about the thoughts of Lord Bingham as the conference progresses!).

Lord Bingham’s book built upon an academic paper which he had delivered four years earlier in 2006 and in which he had looked at what exactly is meant by the rule of law.

In his 2010 book Lord Bingham identified the core principle of the rule of law as being:

“That all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”.

He went on to outline 8 principles which he saw as being the key ingredients necessary to support that aim. In brief these were:

The law must be accessible, intelligible, clear and predictable.

Questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion.

Laws should apply equally to all.

Ministers and public officials must exercise the powers conferred in good faith, fairly, for the purposes for which they were conferred – reasonably and without exceeding the limits of such powers.

The law must afford adequate protection of fundamental Human Rights.

The state must provide a way of resolving disputes which the parties cannot themselves resolve.

The adjudicative procedures provided by the state should be fair.
The rule of law requires compliance by the state with its obligations in international as well as national laws.

By observing these 8 principles, and in particular the fifth, affording adequate protection of fundamental human rights, we avoid the dilemma identified by Professor Joseph Raz in his 1979 work ‘The Authority of Law’.

Professor Raz argued that, seemingly, within the framework of the rule of law, there can exist societies which oppress minorities, condone slavery, and support sexual inequalities – all of which would be abhorrent to liberal democracies. And yet, by adhering to strict legal structures and procedures such societies could still legitimately claim to excel in their conformity to the rule of law.

Such a legal system will allow discrimination and prejudice but all the time within the legal construct of decrees and legislation. Absent protection for human rights, courts and legal system may deprive fellow citizens of their freedom, property and ultimately their very existence. In such circumstances, the claim that the rule of law is observed is but a mockery of the truth.

It is troubling to see some countries publicly proclaim adherence to the Rule of Law and Human Rights, whilst at the same time eroding those very same standards behind the cover of legislative processes – providing a thin veneer of respectability and apparent conformity with legal norms.

It is all too easy for countries to develop a system of oppression and tyranny camouflaged by what purports to be a legal framework. Lord Bingham’s principles and the call for respect for fundamental human rights, expose the lie of such systems and their flawed claim to act in compliance with the rule of law.

As prosecutors and lawyers, we should therefore seek to observe and uphold each of Lord Bingham’s principles; but for the purposes of today’s plenary session, I wish to examine in a little more detail one specific principle, the seventh: the adjudicative procedures provided by the state should be fair.

It is this principle which I believe is of particular relevance to the prosecutor and one whereby the prosecutor who observes it correctly will make a significant difference.

Absent a fair adjudicator (which includes the prosecutor) the rule of law will be banished, replaced by arbitrary and flawed justice. Without fairness there can be no confidence in the courts and decision makers.

A trial where the conclusion is pre-determined, dictated by politics, or directed by the government, does not uphold the rule of law. It is vital, therefore, that the prosecutor be a fearless defender of independence, impartiality and fairness – ensuring not just that the guilty are convicted but also the innocent remain free.

Prosecutors need to be scrupulous in ensuring the fairness of the proceedings with which they are involved. Not just when presenting a prosecution in court but also in the period before, when the prosecutor should carefully assess and analyse the evidence and public interest – that process or adjudication must adhere to the principle of fairness.

At times, the prosecutor’s compliance with this principle will undoubtedly prove to be challenging but the prosecutor, should always act independently and impartially.

Independent, in the sense that a prosecutor should determine the merits of a prosecution solely on the basis of the law and available evidence.

No prosecution should be brought so as to satisfy the political aims of a party or individual. Absent properly acquired, admissible and genuine evidence, no prosecution should ever be started. The law courts are not the forum for settling political rivalries nor should they be used as a convenient means of neutralising an opposition opponent. The selective application of justice can never be justified or appropriate.

The prosecutor must be impartial and free of political taint. Reviewing a case, the prosecutor must be open minded and unbiased. Prosecutors should never allow their personal prejudices or partisan allegiances to influence their decision.

The prospect of a promotion; the fear of demotion; the chance of an increased salary; the possibility of a reward for a decision convenient to a political master – the prosecutor should guard against any of these considerations influencing his decision.

And a state, which truly respects the rule of law, will seek always to shield and protect the prosecutor from ever being subject to such improper pressures or blandishments. Establishing constitutional and legal protections for the prosecutor.

When prosecuting a case the prosecutor should also consider the necessity to disclose material to a defendant which may be helpful to the defence or which potentially undermines the prosecution case. Save in exceptional circumstances, it can never be fair for the prosecutor in a criminal trial to withhold material which may exonerate or support a defendant. Nor, when deciding whether to bring a prosecution, should the prosecutor ignore such material. Impartiality demands that the prosecutor retains an open mind from start to finish.

Fairness means fairness to all. Just as the prosecutor should have ample opportunity to present his case before an impartial tribunal, so too should the defendant be able to effectively rebut the prosecution case. To quote a phrase, there must be ‘equality of arms’.

It simply cannot be right that the prosecution alone be allowed to present evidence. Nor can it ever be right that disputed evidence go unchallenged. Or that the tribunal of fact reaches a conclusion in advance or without having heard the evidence for both sides.

A defendant must be given sufficient opportunity to prepare his case and to have it heard. Any system that convicts a defendant without allowing him these opportunities will be flawed and outside the rule of law.

The prosecutor has a vital role in ensuring that from beginning to end the process is fair. No prosecutor should be party to a state orchestrated charade which shames and abuses the rule of law.

That is the challenge presented by the rule of law.

In saying these things, I am very mindful that it is easy to sound sanctimonious and critical of the systems of others and the challenges which they face. That is not my purpose in speaking so openly. Unless we as prosecutors are frank and honest with each other, speaking out against errors which we perceive and sharing best practice, what is the purpose of this conference?

Indeed, it is because the UK has made many mistakes, and doubtless will continue to do so, that I feel confident in speaking frankly to you – and at all times as friends.

The British system of law and government lays no special claim to infallibility or perfection. Our history is scattered with abuses of executive power and failures within the justice system.

In the 1960s, Northern Ireland was a part of the United Kingdom where the political and legal systems were perceived as being skewed against the minority catholic population. The vital quality of fairness was missing and this fuelled resentment, anger and hatred.

Where did this lead? To almost four decades of bloody conflict, instability and violence.

The government reacted, usually from the best of motives, but all too frequently oppressively and in reality beyond the rule of law. There was, for example, imposed a system of internment – imprisonment without trial. This was a system perceived as biased, unfair and unjust. It further fuelled the anger and hatred and proved to a fertile breeding ground for terrorism and discontent.

If you undermine or subvert the rule of law in the belief that by so doing you will protect your regime or system of government; you will ultimately prove to be the destroyer of all that you seek to preserve.

Fortunately, British democracy has the ability to learn, adapt and amend. Condemned in the European courts, the subject of parliamentary and press criticism, slowly, often far too slowly, the inequalities and unfairness in Northern Ireland society were reduced or removed – lawfully and within the rule of law.

As prosecutors, as lawyers, we need to be vigilant in guarding against the danger of providing a fig leaf of legal respectability to what in reality are oppressive, unfair and unjust systems of law and government. Devoid of the rule of law.

I said at the start, the prosecutor can play a vital role in safeguarding the liberties and freedoms of his fellow citizen. When the echoes of discussion and analysis of this conference have faded, and you tread your weary way home, remember the real value and contribution which you can make to ensuring the rule of law is upheld.

As prosecutors we must never lose sight of that truth – that is the challenge which we face.

Dominic Grieve – 2012 Speech at London Common Law and Commercial Bar Lecture

dominicgrieve

Below is the text of the speech made by Dominic Grieve, the then Attorney General, at the London Common Law and Commercial Bar Lecture on 26 January 2012.

It is a great pleasure to have been invited here this evening to address such a learned audience. I would like firstly to thank Michael Kent, for inviting me to do so.

Although the thrust of my lecture is about human rights, I thought it might be helpful to start by explaining something about my role as a Law Officer and how human rights law impacts on and forms a key part of my work. I want then to turn to consider what, from my perspective, are the key challenges facing the Human Rights Act and European Convention on Human Rights and how meeting these challenges requires an understanding of the proper relationship between Strasbourg, our domestic courts and Parliament and their reconciliation.

Role of the Law Officers

So I will turn first to the role of the Law Officers. I as Attorney and the Solicitor General as my deputy have three main roles: as Chief Legal Advisers to the Government, as the Government Ministers responsible for the ‘Law Officers Departments’ and finally as guardians of certain public interest functions which include, for example, our role as protectors of charity and of the administration of justice-something which has just lead me to prosecute a juror for contempt of court.

In terms of the ‘Law Officers’ Departments’, I am responsible for the superintendence of the Crown Prosecution Service, the Serious Fraud Office and Her Majesty’s Crown Prosecution Service Inspectorate. This superintendence role involves supporting the independence of the prosecutors in taking prosecution decisions and means that l am answerable to Parliament for these prosecuting bodies and for negotiating their budgets.

In carrying out my role as Chief Legal Adviser to the Government, I have a special relationship with the Legal Advisers to Government departments which entitles them to consult me on any matter. Indeed, the Ministerial Code sometimes requires it. Many of the difficult legal issues that policy development gives rise to never come to the Attorney General and the lawyers of the Government Legal Service could be described as the day to day guardians of legality, propriety and indeed, human rights. However, Government lawyers do consult us on legal issues which are particularly difficult or sensitive legally or politically and, often, those issues may involve human rights. The fact that Government lawyers can come to us for advice means that they can discharge a role in their respective departments that reflects ours at their head, not as politicians of course, but as Civil Servants who are also independent professionals.

From this position they advise Ministers on the legality of what they want to do, working up solutions when what is proposed collides with the constraints imposed by, say, the Human Rights Act, or EU law.

Unlike civil servants, the Law Officers are also of course politicians and members of the Government. Although I am not a member of Cabinet, I will attend when my advice is required or when matters within my responsibility come up for consideration. I will also attend Cabinet committees if my presence is needed in order to give legal advice or to understand policy issues on which my advice is likely to be required.

The role and human rights

Although as a matter of Convention, we do not disclose whether the Law Officers have advised on a particular issue or not, it is clear from the fact that the Human Rights Act 1998 has implications for a whole range of government policies that human rights issues are never far from my mind or that of government lawyers more generally. Indeed, it can be no secret that I am regularly asked to advise on whether particular policy proposals are compatible with one Convention right or another.

In addition, the Law Officers have a specific role in ensuring that human rights implications of proposed primary legislation are given careful consideration. This role is not always well known by those outside Government so I will explain it a little further.

As Law Officers, both I and the Advocate General for Scotland, the Liberal Democrat peer Jim Wallace, are members of the Cabinet Committee on Parliamentary Business and Legislation. The main function of this Committee is to consider the readiness of Government Bills and to authorise their introduction.

As a part of this process every department is required to produce a memorandum containing a full and frank legal analysis of the strengths and weaknesses of the human rights issues raised in the Bill and an indication of whether the Minister in charge of the Bill can make a statement that in his or her view the provisions of the Bill are compatible with the Convention rights as required by section 19 of the Human Rights Act.

Either the Solicitor General or I read all these memoranda to satisfy ourselves and provide assurance to the Committee that the department has adequately demonstrated its human rights reasoning. This oversight role has given us a very good insight into how the Human Right Act operates and, indeed, shapes Government policy before it becomes law.

In this respect, I think it is worth pausing here to consider how the Human Rights Act has affected the basic model of English law. According to Dicey, the Vinerian Professor of English Law at Oxford in the late 19th century, a key tenet of the rule of law is that no man is punishable or can suffer any detriment save for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In other words, a person can do anything he wants as long as it is not against the law. Although this still holds true, section 6 of the Human Rights Act makes it unlawful for public authorities to act in a way which is incompatible with a Convention right.

The types of judgment that have to be made in determining whether a particular act is compatible with a Convention right may make it very difficult to explain clearly what a public authority can do and what it can’t. Sometimes it will be obvious that the European Convention prevents a particular approach. But quite often the judgment will be fact specific, for example, in respect of a decision about whether to disclose personal information to another body or individual. It may also involve the law and lawyers entering territory which might previously have been left entirely to Politicians in the executive and to Parliament.

Take the case of Mr Gleaves and Mr Grant, two prisoners who brought test cases against the Ministry of Justice, on which the High Court gave judgment last month.

The claimants alleged that the fact that they were housed in a single cell with no in-cell sanitation was a breach of their Article 3 and Article 8 Convention rights.

An electronic system was in operation to enable them to leave their cell to access a lavatory. However, this did not always enable prisoners to leave their cells promptly for this purpose. Mr Justice Hickinbottom, who decided the claims, accepted that on occasion a prisoner might be forced to rely on the bucket in their cell. The question was whether that amounted to inhuman and degrading treatment contrary to Article 3 or a breach of their right to respect for their private life contrary to Article 8. Mr Justice Hickinbottom decided that it did not. However, if he had found otherwise, the prison service could have been forced to spend significant amounts of money building new cells and modifying old ones given that each cell would not have been big enough to house a lavatory. This would no doubt have been at the expense of other worthy projects and programmes.

I don’t seek to suggest that prison accommodation should not be required to comply with some basic standards or that the court should not have had jurisdiction to decide this case, but I simply seek to highlight that the nature of the judgments which must be made in some human rights cases can be intensely political and may stray into what Lord Justice Laws has previously described as areas of ‘macro-policy’.

Lord Sumption in his impressive F.A. Mann Lecture last year described the way in which the Human Rights Act ‘has significantly shifted the boundaries between political and legal decision-making.’ He explained that when judges make decisions involving qualified Convention rights, the determinations almost always involve striking a difficult balance between competing public interests, which is an inherently political exercise.

Although by enacting the Human Rights Act Parliament has sanctioned the courts to make these decisions, he concludes that there is no denying that ‘it removes important areas of policy from the domain of democratic accountability.’

Equally, there is no doubt that there are many examples of the Human Rights Act helping to improve the way that public authorities make decisions. For example, few could disagree with the outcomes of cases such as R v East Sussex County Council which overturned a ban on manual lifting of severely disabled patients which had been imposed solely with regard to rules for the health and safety of carers and without sufficient thought as to its impact on the disabled people they were serving. The court did not seek to interfere with the balance the local authority might ultimately decide to strike between these competing interests but it did ensure that both interests were properly taken into account by the local authority in formulating its policy.

It is true that in judicial review cases the courts may also become involved in areas of macro-policy but the common law limits of judicial review mean that there is at least some recognition that it is for the policy maker to make the initial decision. In areas where the law provides the policy maker with a discretion, the elected decision maker may opt for one of a range of permissible approaches and the common law principles of judicial review recognise that their choice should normally be respected by the courts in a democratic state. The Human Rights Act does not, on its face, recognise the same limitations.

It seems to me that this explains to a large extent why human rights law remains almost constantly in the news. Almost every week sees a new judgment from the Supreme Court or a decision of the European Court of Human Rights in Strasbourg. There are frequent calls to scrap the Convention and there is a current debate about the repeal of the Human Rights Act.

There is also a great deal of polemic on how the Convention works in practice to affect our lives -a subject that appears to often generate rather more heat than light.

In order to try and introduce a little more light than heat the Government has taken two initiatives. On 7 November the United Kingdom took over the Chairmanship of the Committee of Ministers, the governing body of the Council of Europe which is the international organisation through which the Convention was adopted. The UK Chairmanship is a once in a generation opportunity to drive forward reform of the European Court of Human Rights. We want to help the court deal with its backlog of cases to ensure that serious breaches of Convention rights are handled speedily and to help the Court to focus on those cases that genuinely need to be addressed at Council of Europe level.

Furthermore in March the Government established a Commission to investigate the creation of a UK Bill of Rights. The Commission on a UK Bill of Rights provides us with the first proper opportunity since the passage of the Human Rights Act to consider how we should best enshrine the Convention rights in UK law and follows much academic debate on the subject which I shall touch on later in this talk.

Court reform

In addressing the topic of court reform in Strasbourg I want to stress at the outset that there is no question of us withdrawing from the European Convention of Human Rights or the jurisdiction of the European Court of Human Rights as some critics of the Convention have advocated. The Government believes that both the court and the Convention are an essential part of the system for protecting human rights across Europe.

Reform however is necessary. At present the court is drowning under the volume of work that its presence has generated. To get an idea of the scale of this, in the first 40 years of its existence, 45,000 cases were presented to the court. This contrasts with last year when 61,300 applications were made to it. This has led to a huge backlog of cases, amounting to more than 160,000 at its peak. And although steps have been taken to reduce that backlog by extra resources to filter out the hopeless cases it means that those remaining will need more detailed scrutiny and very lengthy time delays still exist. The latest figures from the Court Registry tell us that the average waiting time between a case being received by the court and it being communicated to the relevant Government is 37 months. On average it then takes a further 17 months to get judgment in Committee cases and this figure rises to 25 months in Chamber cases. The Court has 3,100 applications pending that were lodged before 2005, 400 of which have yet to be communicated to the relevant Government.

Not surprisingly therefore the United Kingdom is not alone in its concern. There is unanimous agreement across all the 47 member states that reform is needed and the process is already underway and we want to build on the measures adopted by the Council of Europe at the Interlaken and Izmir Conferences in the past two years during our Chairmanship of the Committee of Ministers.

Following interim advice from the Commission on a UK Bill of Rights, we have now made clear what our objectives during the Chairmanship will be. In particular, we want to help the Court deal with the backlog of applications. The Court has already made significant progress by developing new, more efficient working methods and prioritising cases more effectively. But further improvements are needed and that’s what we want to support. We are keen to look again at the admissibility criteria to ensure that the Court can focus on those serious cases which genuinely need to be dealt with at supra national level.

We also want to improve the procedures for the selection of well-qualified judges to the Court.

Our period of chairmanship only lasts for 6 months and therefore these are certainly ambitious objectives. However, the prize is an important one – a court which is able to focus on handling the most important cases more quickly, efficiently and transparently. It is therefore my sincere hope that with the help and assistance of the other 47 member states we will be successful in delivering the reforms the Court so badly needs. I and my ministerial colleagues have been investing a lot of effort consulting and lobbying other member states. The Prime Minister made a speech to the Parliamentary Assembly of the Council of Europe yesterday, as I did earlier in the summer.

The Foreign Secretary, William Hague, the Minister of Europe, David Lidington, and the Lord Chancellor, Ken Clarke, have both been out to Strasbourg and to various European capitals to explain and build support for the proposals along with other Ministers. We are also engaging with the technical working groups at official level on the proposals. We have made some progress but there is a long way to go. But we are ready to put in the necessary effort.

The reforms I have mentioned so far are primarily procedural. But I want to say more about one other idea which I believe can both help reduce the backlog of cases and will also allow the Court to assume its proper role as the guardian of the Convention – that is, strengthening the principle of subsidiarity.

Subsidiarity has a specific meaning in the context of the Convention. The principle of subsidiarity is that the national authorities of Member States (that is, their governments, legislatures and courts) have the primary responsibility for guaranteeing and protecting human rights at a national level and the European Court of Human Rights has a subsidiary role in supervising the protection of Convention rights. The principle of subsidiarity recognises the fact that, as I was saying earlier, the Court is at times having to make intensely political judgments and the balance to be struck between competing interests should often be decided at a local level. As Lord Sumption has said ‘rights are necessarily claims against the claimant’s own community, and in a democracy they depend for their legitimacy on a measure of recognition by that community.’

It helps to ensure that proper account is being taken of democratic decisions by national parliaments – a concern which has arisen most forcefully in the prisoner voting debate – and that the views of the national courts who will have considered the issue prior to it reaching Strasbourg are also accorded due respect.

This principle of subsidiarity is well established and has been recognised by the Council of Europe in both the Interlaken and Izmir Declarations on reform of the Court as well as in the case-law of the Strasbourg court.

The United Kingdom agrees that this should be the guiding principle governing the relationship between our national courts and the European Court of Human Rights. Of course the United Kingdom must still be subject to the judgments of the Strasbourg Court but the Court should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention.

One way of strengthening the principle of subsidiarity is for the Court to afford Member States a wide margin of appreciation where national parliaments have implemented Convention rights and where national courts have properly assessed the compatibility of that implementation with the Convention.

During our Chairmanship we will work with Member States of the Council of Europe to see how this agreed guiding principle of subsidiary can be strengthened. However, it is important to note that the corollary of this principle is that there should be effective systems in place to protect the Convention rights at the national level – which neatly leads me on to the second challenge I said was facing us today.

Human Rights Act

How best should we enshrine the Convention into the law of the United Kingdom? This is the question the Government has asked of the Commission on a UK Bill of Rights.

To be precise the terms of reference are to:

… investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties. It will examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.

The Commission is due to report by the end of the year and I am looking forward to its conclusions and recommendations. However, we should not underestimate the difficulty of the task facing the Commission and I think it would be helpful to set out some thoughts about the Human Rights Act and what it means for the relationship between our domestic courts and Parliament and the domestic courts and Strasbourg.

First, we need to be clear about what the Human Rights Act does. The Human Rights Act is not synonymous with the Convention. Nor is it some sacred tablet of stone. It is simply the method by which the United Kingdom has chosen to incorporate the Convention into our domestic law. The Government has asked the Commission to investigate the case for replacing the Act with a UK Bill of Rights which will ensure that the Convention rights continue to be enshrined in UK law.

The Government is not intending to limit or erode the application of any of the rights and freedoms in the Convention. However, as with the question of court reform, deciding how best to incorporate the Convention into UK law requires an understanding of the nature of some of the judgments which have to be made in human rights cases and the fact that where there is a balance to be struck between competing rights, there may be more than one permissible answer.
This was recently recognised by the Court of Appeal in the case of PE (Peru) v the Home Office where the Court accepted that whether a person’s deportation was proportionate or disproportionate for the purposes of Article 8 was a question of judgment and that the courts and tribunals were essentially carrying out an evaluative exercise. In some deportation cases, the only permissible finding would be that deportation was proportionate. In others, the only option would be a finding that it was disproportionate. However, there would be cases where either finding was permissible and could not be appealed against. In other words, the court considered that it should defer to the views of the first tier tribunal when it came to look at these cases on appeal.

Jonathan Sumption appeared to go further than this in his F.A. Mann lecture when he said that there needs to be some separation between the determination of a policy’s lawfulness and an assessment of its merits.

In his view, this requires a measure of restraint on the part of the judges which involves deference not to ministers but ‘to the constitutional separation of powers which has made the minister the decision-maker’ and not the judge.

The principle of deference supports the Home Secretary’s decision to give a greater steer to judges on where Parliament considers the balance should be struck in cases involving the deportation of foreign criminals where Article 8 of the Convention protects the right to a private and family life but may be moderated in the public interest. The Government is entitled to say that the domestic courts have placed too much weight on the family rights of foreign criminals and to redress the balance in the Immigration Rules by ensuring that they more fully reflect the compelling public interest in the maintenance of an effective immigration control in respect of those who have committed criminal offences.

Parliament, before whom these changes to the Immigration Rules will be laid, is best placed to decide on difficult policy questions such as where the balance should be struck in relation to the deportation of foreign criminals. In changing the rules we will respect the jurisprudence of the Strasbourg court and reflect the margin of appreciation that the European Court of Human Rights has correctly afforded to Member States in coming to such decisions.

Indeed, my work as a Law Officer has shown me how difficult policy-making has become. Courts are increasingly being asked to make judgments under the Human Rights Act which would previously have been considered to be questions of pure policy and it can be very difficult for the policy maker to second guess whether a particular policy will, in the end, be found to be compatible with the Convention. This level of uncertainty can, as we all know, lead to significant amounts of litigation, sometimes at great cost to the public purse.

To deal with this problem, I have explained how we need to clarify how the Strasbourg Courts should view the judgments of our domestic courts and how the domestic courts should take into account the balance struck by Parliament and Ministers on human rights issues. Before I end, I also want to say something about the way in which the domestic courts may view the judgments coming down from Strasbourg.

Section 2 provides that national courts determining a question which has arisen in connection with a Convention right must take into account any judgment of the European Court of Human Rights in so far as, in the opinion of the court, it is relevant to the proceedings in which that question has arisen.

Although as a matter of international law, Strasbourg judgments against the UK are binding on us, domestically British courts are not bound to follow the jurisprudence of the Strasbourg court when considering other cases. They must take it into account. But what does that mean in practical terms? We must turn to Lord Bingham’s judgment in Ullah v Special Adjudicator in 2004 and I quote:

“The House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court … This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court.

From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”.

Interestingly however, Lord Irvine of Lairg made it very clear last month in his lecture ‘A British Interpretation of Convention Rights’, that he did not consider that this was the intention of Parliament when it enacted the Human Rights Act. In his view, section 2 means that the courts must take account of the Strasbourg jurisprudence but they are not bound by it. Indeed, an amendment to the Human Rights Act when it was going through Parliament to the effect that the courts were bound by the Strasbourg case law was expressly rejected by Parliament as I well remember from my participation in the debates at the time.

An interpretation of section 2 which recognises that the national courts are not always bound by Strasbourg jurisprudence and may disagree with Strasbourg in at least some circumstances is necessary if we are to fully take into account the principle of subsidiarity.

The key question is whether domestic courts – and the Supreme Court in particular – should be allowed to differ from Strasbourg where they consider that they are better placed to understand the impact of Convention rights in the UK and thus enter into a productive dialogue with the Strasbourg court?

This issue has been the subject of growing discussion amongst the judiciary and academics. Lord Hoffman raised it in his lecture to the Judicial Studies Board in March 2009 as did Lady Justice Arden in her Thomas More lecture here two years ago. The Lord Chief Justice also discussed the point in his evidence to the Lords Constitutional Committee last year. In the case of Horncastle, the Supreme Court considered whether legislation which allowed for the admission of evidence of an absent witness at a criminal trial will result in an unfair trial.

In doing so the Court had, by virtue of section 2 of the Human Rights Act, to take into account the Strasbourg decision in Al-Khawaja and Tahery v United Kingdom which had found that convictions based solely or decisively on hearsay evidence of an absent witness, whom the accused had no opportunity to examine, were incompatible with the right to a fair trial under Article 6 of the Convention. However, the Supreme Court declined to follow the Strasbourg decision, on this rare occasion, as it had concerns about whether the European Court had sufficiently appreciated or accommodated particular aspects of the UK trial process. The Supreme Court was entering precisely into a valuable dialogue with Strasbourg where the Grand Chamber has now reconsidered the matter, deciding that a conviction based solely or decisively on hearsay evidence of an absent witness would not automatically breach Article 6.

Judge Bratza, in his concurring opinion in the Grand Chamber, described this as ‘a good example of the judicial dialogue between national courts and the European Court on the application of the Convention’. Whilst the Grand Chamber was not able to accept all the criticism of the European Court’s previous judgment, in his view, it has now addressed what appears to be one of the central problems identified by the Supreme Court, namely the inflexible application of the ‘sole or decisive test’. He explains that the Grand Chamber not only took into account the views of the Supreme Court but also re-examined the safeguards in the relevant legislation which are designed to ensure the fairness of the criminal trial.

We would therefore benefit from better definition of the very important relationship between the national courts and Strasbourg. Had we wished, in 1998 the UK could have made it clear that the national courts must follow the jurisprudence of the international court and allowed the courts to strike down primary legislation. We specifically chose not to do so.

If the current system is not working we could positively provide for a right of rebuttal, as Lady Justice Arden put it in her Thomas More Lecture, which allows the Supreme Court here or in another member state to be able to say to the Strasbourg court that it has not made the principle clear, or that it has not applied the principle consistently, or that is has misunderstood national law or the impact of its decisions on the UK legal system.

This it seems to me is an area which needs further thought and I will not attempt to provide a complete solution here tonight. It is for the Commission to consider the position and reach its conclusions first.

Whatever one thinks about the success or failure of the Act in incorporating the Convention into UK law, it must be recognised that it is a complex piece of legislation. This complexity arises from its attempt to deal with a number of fundamental constitutional relationships – between the national courts and Strasbourg; between the national courts and Parliament as well as the relationship between the executive and Parliament.

There is I believe a unique opportunity during the time of our Chairmanship of the Committee of Ministers and with the Commission for a UK Bill of Rights now considering these issues, for us to ensure that these relationships are examined and perhaps better defined.

I hope we will be able to have a reasoned and accurate debate about the challenges posed by the European Court of Human Rights and the operation of the Human Rights Act to our democratic institutions as well as a proper appreciation and recognition of its undoubted benefits.

It is important also that we include the general public in this debate to ensure that they too understand the benefits of the Convention and its influence on their lives. The public do not always see the way in which human rights help to ensure structure and rigour in policy making. For example, the Human Rights Act may lead a lawyer in Government to ask an official to gather more evidence for the proposed policy approach or to give a person the opportunity to be heard before a particular decision is made. It is this aspect of the Human Rights Act which may largely go unnoticed by the public but which can bring real benefits to them.

Acceptance of human rights will always be controversial because of the fact that certain fundamental rights are universal and should apply to everyone, whatever they may have done and whether or not they themselves have shown respect for the human rights of others. Nevertheless, there can be debate about how far those fundamental rights extend and in setting those limits we must properly recognise the role of Parliament and elected politicians as well as the courts. If we do that, I am confident that we will be able to achieve consensus both at home and throughout Europe on a flexible framework of human rights which can meet the challenges ahead and continue the essential promotion of human rights for both ourselves and future generations.

Dominic Grieve – 2015 Speech on Syrian Air Strikes

Below is the text of the speech made by Dominic Grieve in the House of Commons on 2 December 2015.

It is a pleasure to follow and my right hon. Friend the Member for Chichester (Mr Tyrie) and the hon. Member for Newport West (Paul Flynn). I shall have to endeavour to explain to them why I think they are both mistaken in their conclusions.

All of us in this House have acknowledged, and indeed it is a legitimate subject of debate, that the condition of the middle east is frankly pretty close to being catastrophic. There are powerful forces at work pulling civil society apart. There is sectarian conflict. There are a whole variety of grievances that have been exploited by various dictators throughout the ages, and that is regularly being repeated. All the signs are that in many places the structure is extremely fragile, and we are very fortunate that in one or two areas it is subsisting.

We can all agree on that, and I also agree that the situation is not amenable to any easy solution, or we would have found it a long time ago, but none of that explains to me logically why some hon. Members in this House consider that action in extending our military operations against Daesh into Syria is wrong. If it is indeed wrong, then our intervention in Iraq 12 months ago was wrong, whereas all the analysis that I have seen suggests to me that it is the one thing that has prevented the situation from wholly spinning out of control. We have a remarkable tendency in this House—perhaps it is a good thing in a democracy—to look at our shortcomings and not look at the benefits of what we may have achieved. It seems to me that if we had not intervened, there was a serious risk that generalised war would have broken out in the middle east, with Iranian intervention in Iraq to prop up the Iraqi regime and, ultimately, intervention by Saudi Arabia as well. We ought to look on the bright side of what has been achieved and then consider whether the limited steps that have been proposed are reasonable. It seems to me that they are. They are not a solution to the problem, and to that extent, the challenge remaining for my right hon. Friends through the Vienna process is a very real one. It does not seem to me that those limited steps will make matters worse. What they show is a comity of interest with our allies, to whom we are committed, to try to do something to address this problem and to keep it under control until better solutions can be found. That seems to me to be a legitimate and proportionate response to the problem that we face.

It has been suggested that this will all in some way run away with itself. It will not do so if the House is vigilant. The legal basis for intervention is very limited: every action that is taken hereafter will have to be necessary and proportionate to achieve a legitimate aim that is severely circumscribed. I have every confidence that my right hon. and learned Friend and my hon. and learned Friend the Law Officers will be able to deal with that, and every confidence that my colleagues in the Government will observe the limits.

It has been suggested that we will not be able to engage in diplomacy. I have to say I was staggered to hear my hon. Friend the Member for Basildon and Billericay (Mr Baron) say that we ought to emulate the Chinese in this matter, rather than the French. I find that an extraordinary notion.

Stephen Gethins:

As a member of the Foreign Affairs Committee, the hon. Member for Basildon and Billericay (Mr Baron) quite rightly made the point that the UK can maintain its influence without taking military action that will have a marginal effect.

Mr Grieve:

If I may say so, the question that should be asked is a different one: does our involvement diminish our ability to exercise diplomatic influence? The hon. Gentleman fails to take into account that by withdrawing from the military process entirely, as he is clearly advocating, we diminish our ability to influence the allies who share our values in this matter. That is why I found the suggestion that we should emulate China so astonishing.

Finally, there is an issue of great importance about Islamophobia and the structures of our own society. The hon. Member for Newport West touched on it, and he has my very considerable sympathy; he probably knows that I have had an interest in this matter for many years. I have absolutely no doubt that Islamophobia is on the rise in this country and, indeed, that the backwash coming out of the middle east threatens to undermine our civil society. That is a very real challenge that everybody in the House ought to address. In that regard, my criticisms of the Prevent strategy are well known. I must say that I do not believe what we are doing in Syria undermines that one jot. On the contrary, I would have thought that a sense of powerlessness in the face of the murderous cruelty of Daesh is one of the most likely causes fuelling Islamophobia in this country. A rational policy enacted and proceeded with by the Government—with, I hope, the support of many Members of the House—seems to me to be a better way forward.

Dominic Grieve – 2013 Speech on Juries

dominicgrieve

Below is the text of the speech made by Dominic Grieve, the Attorney General, on 11th December 2013.

Thank you for that introduction Sheila and for inviting me to speak this evening about trial by jury. It’s a great pleasure to be here and I’m delighted to be speaking to you on the subject of whether jury trial continues to be an effective guarantor of justice. Those of you who know me will not be surprised to hear I am an enthusiastic advocate of trial by jury and I make no apology for saying from the outset I think it is an essential element of the justice system of England and Wales. It is deeply ingrained in our national DNA.

The protection of historic freedoms through the defence of trial by jury was part of our coalition agreement when the Government came into power and it’s my firm view that trial by jury provides a vital safeguard in a free society.

I don’t subscribe to the view expressed by the poet Robert Frost that:

A jury consists of twelve persons chosen to decide who has the better lawyer

I am only going to consider trial by jury in the criminal justice system this evening, but it is worth remembering that the civil justice system also has juries, for example in some inquest cases. I am also going to confine myself to talking about England and Wales, as jury trial in other jurisdictions, such as the United States, is very different and I think it would be unwise to draw too many parallels.

In England and Wales some form of trial by jury has existed for probably about a thousand years, although it’s fair to say that in its early incarnation it bore little resemblance to the system we have today. The groups of noblemen assigned to the task were required to investigate the case themselves and it was primarily used as a means of resolving property disputes.

As you will, I am sure, know, the right for a man to be punished only pursuant to the ‘the lawful judgement of his equals’ was enshrined in King John’s Magna Carta in 1215. The ‘right’ was of course a limited one and only available to men of a certain standing, but I think it does have some resonance even now, because it lays the foundation stone for the principle of judgement by one’s peers. It was certainly preferable to using ordeal by water or fire as methods of proving guilt or innocence.

By the 17th century the right to be judged by one’s peers was confirmed in the Act which abolished the Star Chamber. The development I want to focus on concerns the right of the jury to return the verdict they consider just and Bushel’s case of 1670, which confirmed that a jury could not be punished by reason of the verdict it returned, is one of the earliest and most important examples. Bushel had been a member of the jury trying Penn and Mead, two Quakers who were charged with unlawful assembly for holding a religious meeting in violation of the Conventicle Act. The jury found the two ‘guilty of speaking in Gracechurch Street’ but refused to add ‘to an unlawful assembly’. The judge reacted by imprisoning them without food, heat or water but this was a jury made of stern stuff and after two days they returned a further verdict of not guilty. The judge went on to fine them for returning a verdict contrary to their findings of fact and imprisoned them for contempt. Bushel petitioned the Court of Common Pleas for a writ of habeas corpus and the subsequent proceedings confirmed the principle of juries’ independence that we value so greatly and which provides an essential guarantor of freedom.

The operation of jury trial was still a far cry from what we now understand – for example lawyers only became a regular feature at the turn of the 19th century and juries might hear half a dozen cases in a day before retiring to consider their verdicts. Until 1858, the jury would be kept without ‘fire, food or drink’ until a verdict was reached (or, as in Bushel’s case, a satisfactory verdict) so it is perhaps no surprise that it was often a swift affair. The right of the defendant to testify, access to free legal representation and the establishment of an appellate procedure are all recent innovations in this story and make the function of the jury now very different from even a hundred years ago.

Examples of juries returning verdicts unpopular with the governing regime, or which may appear to contradict the directions of the judge are not confined to the distant past.

As recently as 2005 the House of Lords confirmed in the case of R v Wang ([2005] 1 W.L.R. 661) that there are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty. Mr Wang was charged with possessing offensive weapons in a public place. He had a sword and a knife which he claimed was because he practised Shaolin, a traditional martial art. The judge found that the defendant had failed to advance a lawful defence, because his claim could not amount to a ‘good reason’ for having the articles and directed the jury to convict. The Court of Appeal agreed with the trial judge that it had been ‘plain beyond sensible argument’ that the material before the jury could not discharge the burden of proof which the offence placed on the defendant. The House of Lords disagreed and quashed the conviction. Lord Bingham, quoted Lord Devlin (he of the famous declaration that trial by jury is “the lamp which shows that freedom lives”) in an earlier case:

“I find it difficult to see how a sensible jury could have acquitted. But I do not reach such a conclusion as a matter of law and I cannot accept that the judge is entitled to direct the jury how to answer a question of fact, however obvious he may believe the answer to be and although he may be satisfied that any other answer would be perverse. That in my view gets to the heart of the matter. The right of the jury to return the verdict it collectively believes is the true one is inalienable. Well, you may say, do we want a legal system in which the jury can return a verdict which seems to us to fly in the face of the evidence? My answer is yes, it is essential that juries are trusted to take decisions, with proper direction, even if very occasionally those decisions will not accord with the view that lawyers, judges or the Crown may hold.”

There is another reason why it is important that jury trial is preserved. This is to do with participation in the criminal justice system. Many people will go through life without any direct involvement in the criminal justice system. Their information will be gleaned from the media, drama, possibly anecdotes from friends or family. Depending on their generation, it may be Rumpole of the Bailey, This Life, or Silks. It seems to me that one way for the system to maintain legitimacy is for people to have a way of genuinely being part of the decision making process. Indeed, it is hard to think of a more serious or important civil duty that virtually any member of the public may be called upon to conduct.

What do we know about jury trial? In 2012/13, of 97,182 cases prosecuted by the Crown Prosecution Service in the Crown Court, just over 15,000 proceeded to trial. 69,971 guilty pleas were entered (72% of cases). Just to put that in context, the total number of cases dealt with by lay benches or District Judges in the Magistrates’ courts is around a million but the fact that only a small minority of criminal cases are disposed of by Crown Court jury trial in no way undermines the principle that it is an essential safeguard. Crown Court trials amount to a very considerable number of cases, including of course trials for the most serious offences.

I don’t want to present a rose tinted picture of a criminal justice system in which juries can do no wrong. I am particularly conscious of the fact that jurors are human and fallible; as individuals they make mistakes and they make bad decisions, just as all of us do. I will say more about that a little later.

Experience of lawyers, judges and others working in the Criminal Justice System however is overwhelmingly that juries almost always do a conscientious job and do it effectively. That is my experience too. Such views are also supported by the fact that appeals against conviction which rely on complaints about failings of jurors are rare.

It is also supported by recent research into juries, carried out by Professor Thomas of University College London and published by the Ministry of Justice in 2010. I commend this fascinating piece of work to you. It is perhaps surprising that so little research has been done on jury decision making. This is especially the case now that Professor Thomas has shown how despite section 8 of the Contempt of Court Act 1981, which makes it a criminal offence to ‘obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced, or votes cast by members of a jury in the course of their deliberations’, does not in fact, as was commonly believed, prevent meaningful research being carried out.

The research found little evidence that juries are not fair. It also looked at the effectiveness of juries and found that, once sworn, juries reached verdicts by deliberation on 89% of all charges and that juries were discharged in less than 1% of cases.

Interestingly, the study found that offence type had an impact on the probability of a jury convicting. Those offences where the strongest direct evidence is likely to exist – such as making indecent photographs of children, or causing death by dangerous driving – had significantly higher conviction rates than offences which more obviously required the jury to be sure about the state of mind of the defendant. An example of the latter might be attempted murder, which requires proof of an intention to kill, making it in one sense more difficult to prove than murder. This suggests that juries do try cases on the evidence and the law.

It is fair to say that the study identified certain problem areas with jury decision making and in particular highlighted jurors’ uncertainty about what they should do in the event of impropriety in the jury deliberating room. In addition, jurors’ ability to understand the judge’s legal directions increased markedly when written instructions were provided, suggesting that such a practice should be far more routine than it is now.

Examples of juries struggling with their task to the extent that they are unable properly to discharge it are very rare. You will no doubt remember the Vicky Pryce case, earlier this year, in which the judge discharged the jury because he concluded that they had a ‘fundamental deficit in understanding’ of the trial process. But the trial judge himself, Mr Justice Sweeney, said that in thirty years he had not come across a similar situation.

There are, too, examples of cases that have collapsed after the expenditure of much time and money – the longest and probably the most expensive being the Jubilee line fraud trial, which resulted in six defendants being acquitted when the jury was discharged after the trial had been ongoing for almost two years. The impact of the collapse of the trial was so keenly felt that my predecessor Lord Goldsmith QC referred the matter to the Chief Inspector of the Crown Prosecution Service to inquire into the circumstances. The subsequent report concluded that there were a number of reasons why the trial had collapsed, including the illness of one of the defendants and the way it was presented by the prosecution, but importantly it was the (unusual) combination of the various factors which proved fatal. It was not a failure of the jury.

There are challenges to the integrity of jury trial, but I would like to suggest that those we face now are not so very different from those that have always been present. I have, as you will know, a particular role to play in respect of jurors, because I can, and do, bring contempt proceedings against those, including jurors, whose conduct is intended to and does undermine the administration of justice.

All juries are directed in robust terms about the need not to conduct their own research into the case. It has always been necessary to direct jurors not to discuss the case with anyone, not to visit the scene of the crime, not to research the witness or defendant details. And now such directions extend to not researching the case on the internet. To ignore those directions, intentionally, amounts to a contempt of court. This does not mean that jurors must refrain from reading the news (online or in the traditional way), nor that they should not use the internet as they would normally. It means that they must not seek out extraneous information about the case they have sworn to try in accordance with the evidence.

About many criminal trials, there may be all kinds of prejudicial information ‘out there’ on the internet. This could be in the form of archived news reports about the defendant’s previous court appearances, or it could be, to use the words of the old authorities in a modern context, mere chaff and banter about the case on someone’s Facebook page or Twitter feed. But the chances of a juror seeing such material are fairly slim, providing they haven’t gone looking for it.

Let’s say one of the jury trying a defendant for a serious assault decide to take matters into their own hands by looking up archived news reports about the defendant – in defiance of the judge’s directions not to do that very thing.

Before too long, a bit of internet searching reveals that this is not the first time the defendant has been before the courts, and that he had in fact faced trial for rape. The rest of the jury must be told, the juror says to herself. There is information about the defendant that the judge is trying to withhold from us! From this point onwards, the trial process is undermined. The jury will no longer be able to deliver a verdict based solely on the evidence adduced before them; the role of the judge has been usurped, the defendant’s right to a fair trial is prejudiced.

The scenario I described a moment ago involving a juror searching for material about the defendant on the internet was, sadly, not fictitious. The juror’s name was Theodora Dallas and the defendant was called Barry Medlock. The trial was at Luton Crown Court in 2011.

Dr Dallas was found by the Lord Chief Justice to be in contempt of court, and was committed to 6 months’ imprisonment. Barry Medlock had to be retried before a fresh jury, and the victim had to give evidence again. When passing sentence on Dr Dallas, the Lord Chief Justice said:

“Jurors who perform their duties on the basis that they can pick and choose which principles governing trial by jury, and which orders made by the judge to ensure the proper process of jury trial they will obey, or who for whatever reason think that the principles do not apply to them, are in effect setting themselves up above the jury system and treating the principles that govern it with contempt…”

The Lord Chief Justice continued,

“The problem [.. ] is not the internet: the potential problems arise from the activities of jurors who disregard the long established principles which underpin the right of every citizen to a fair trial.”

I endorse those remarks.

My recent experience is that the law of contempt is both adaptable and resilient in the face of the challenges of technology. The fundamental principles underlying the need for juror restraint are timeless.

Another danger is communication between jurors and witnesses or defendants, as was revealed in the case of Fraill and Sewart where a juror, Fraill, initiated contact with a defendant, Sewart, whom she had just acquitted. The contact was made while the jury was still deliberating the guilt of the remaining defendants in what had been a long, multi-handed organised crime trial. Details of the jury’s deliberations were revealed by Fraill in the course of a Facebook chat she initiated with Sewart. In doing so, Fraill breached the prohibition in section 8 of the 1981 Act, in addition to breaching the directions of the judge not to go on the internet to research the case. Both denied the allegations, and a trial took place before the Lord Chief Justice, who, sitting with two High Court Judges, found the case proved.

The Law Commission has just this week published a report making recommendations to reform elements of the law governing contempt of court. They include creating a statutory offence for jurors who intentionally seek information beyond the evidence presented in court. My office has worked closely with the Law Commission on the proposals which I welcome and which will be given careful thought by the government.

My personal view is that the proposals seem to have very considerable merit. By creating a specific criminal offence of misconduct by a juror, the proposals emphasise the importance of jurors following judges’ directions, and can give clarity to jurors about what is and is not permissible. But crucially, the proposals also provide jurors with an additional layer of protection when they are accused of such misconduct, as they would themselves be able to advance a defence to a jury of their peers.

In other words, these proposals are themselves another endorsement for the principle of trial by jury. The Law Commission are saying – and I agree – that we can trust a jury to make a reasoned decision, even in cases where jurors are themselves on trial. You might even say that the Commission has put the principle of jury service itself on trial – and found in its favour. And as I hope my speech has demonstrated, I am both pleased but also unsurprised by that outcome. Jury trial is a bulwark of our freedoms, it works, and I hope and expect that it is here to stay.

Dominic Grieve – 2013 Speech on Trial by Google

dominicgrieve

Below is the text of the speech made by the Attorney General, Dominic Grieve, at the University of Kent on the 6th February 2013.

As Attorney General I have various roles. I was once described as the “man with two hats”. I have to say, I saw that description and thought – if only it was only two!

Most, if not all, the hats I wear are non-political; that is to say, I act independently of the Government, and certainly do not act in a political manner: legal advice is legal advice, and must not be calibrated to political considerations.

Various aspects of the role of Attorney embody the rather broad notion of being “the guardian of the public interest”. This includes having the ability to refer certain criminal cases to the Court of Appeal on the basis that the sentence imposed was “unduly lenient”, being required to consent to certain criminal prosecutions – for example, terrorist offences which impact on the affairs of another jurisdiction, or prosecutions under the Official Secrets Act.

Being guardian of the public interest also encompasses enforcing the law of contempt. Contempt is, broadly speaking, a jurisdiction to protect the integrity of the judicial system and the courts. Just as the judicial system has many facets, so does the law of contempt.

And, as we shall see, the nature of contemporary contempt is changing, but the purpose of the law remains the same: in this context, it is to protect the right to a fair trial.

Allow me to illustrate the point with the assistance of another jurisdiction.

Late last month, The Economist ran a story about two senior federal prosecutors in Louisiana who resigned in disgrace when it was revealed that they were the source of vitriolic, anonymous blog posts directed at particular Federal judges.

Their resignation was followed by resignation of their boss, the United States Attorney for the Eastern District of Louisiana, a well respected man with a reputation for campaigning against political corruption and white collar crime.

The Economist said this:

“The episode is a cautionary tale about the perils of the internet.”

Although many people think the anonymity that veils their online rants is absolute, plenty of jurisprudence argues otherwise…

The piece continued,

“Naturally, a host of federal targets – including some who have already pleaded guilty or been convicted – are now crying foul, saying the commenting amounted to a campaign to sway public opinion and poison the jury pool…”

It is an interesting, disappointing story; one which I hope is never replayed by prosecutors in this jurisdiction.

But it illustrates vividly an important point: what we do on the internet does matter, and it is not only our jurisdiction which is concerned about the impact of the internet and social media on the right to a fair trial.

Just as defendants in the state of Louisiana are concerned that the jurors who convicted them may have been swayed by improper influence, we too must be careful to ensure that our juries are not improperly influenced, whether through published material they inadvertently encounter, or through conducting their own research – which I have termed “trial by Google” for tonight’s purposes, for such research is usually internet-based.

The way our legal system mitigates those risks is through the law of contempt.

To think about this in more depth, I propose to cover:

Forms of contempt; in particular how the law of contempt protects the integrity of trial by jury

Contempt is a broad jurisdiction:

It is the means by which certain court orders are enforced.

It is the means by which judges regulate proceedings before them.

Contempt encompasses a summary jurisdiction, unique in our legal system, allowing judges to deal with certain matters as contempt in the face of the court.

It is more than a mere summary jurisdiction; as well as regulating what happens during proceedings in court, it covers what can be said about proceedings from outside court.

Some contempts are so serious that rather than dealing with it there and then, the judge refers it to me to consider bringing proceedings in the Divisional Court, part of the High Court.

The law of contempt regulates the behaviour of those involved in proceedings, including but by no means limited to, the jury.

As we shall see, the law relating to publication contempt and that relating to the conduct of jurors go hand in hand.

The Contempt of Court Act 1981 placed on a statutory basis what is known as the “strict liability rule”. That rule provides that a publication – and it must be a publication for the strict liability rule to apply – may be in contempt of court, regardless of intent to do so, for conduct which tends to interfere with the course of justice.

The strict liability rule is limited by section 2(2) of the Act to apply only to,

“a publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced…”

There is a defence to breaches of the strict liability rule in the following terms,

“a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”.

And finally, the rule only applies when proceedings are “active”; a concept about which, as I am sure you can imagine, much legal ink has been spilled over the past 30 years.

The 1981 Act was enacted following growing uncertainty about the scope of the former common law regime for strict liability contempt, which culminated in considerable criticism from the European Court of Human Rights in 1979 case Sunday Times v UK.

The Strasbourg Court held that an injunction obtained by the then Attorney against the Sunday Times to prohibit publication of an article breached its Article 10 rights.

Article 10, of course, guarantees the right to freedom of speech. It is a broad guarantee, and an extremely important one.

Freedom of speech, and its legal cousin, the open justice principle, feature in the legal system of any jurisdiction which respects the rule of law. Freedom of speech and the rule of law go hand in hand: both are certainly part of our proud common law heritage.

Freedom of speech encompasses not only the right of the media to speak, as it were, but also their right to gather material in order to exercise the right to free speech. It extends to the right of the public to be informed, by the media.

But it is not an unfettered right. Article 10(2) of the Convention provides that the right,

“may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety…”

The list goes on, and concludes with,

“…maintaining the authority and impartiality of the judiciary.”

And the judiciary, of course, includes the jury in a Crown Court trial. Article 6 of the Convention guarantees the right to a fair trial; again, a matter of heritage for our jurisdiction in any event.

So Parliament, seeking to balance these competing requirements, enacted the Contempt of Court Act 1981.

Far from being a restrictive enactment, the 1981 Act was intended to shift the balance of the law in favour of freedom of speech. It sought to clarify what could and could not be published about legal proceedings.

By clarifying the law, restrictions on publication were defined – and thereby limited – by the Act.

For example, section 4(2) of the Act allows a court to make an order postponing publication of certain reports of the proceedings until some future date or event. This is how the provision was described by Lord Denning in a leading case some time ago,

[The Contempt of Court Act]

“is not a measure for restricting the freedom of the press. It is a measure for liberating it. It is intended to remove the uncertainties which previously troubled editors. It is intended that the court should be able to make an order telling the editors whether the publication would be a contempt or not.”

The paradigm example of this would be where there has been pre-trial legal argument, say to have the case thrown out as an abuse of process. Such argument would take place, of course, in the absence of the jury. It would be highly prejudicial, not to mention nonsensical, for a jury to be sent out of court during that argument, only to read about what happened in report of the proceedings the paper the following morning!

Or there may be several linked trials relating to the same crime: again, it would be highly prejudicial for the jury in one case to read of the evidence adduced in another. Of course, the same evidence may be common to both cases, but the manner in which it is adduced, the full context which will accompany it and the corresponding directions of the judge are vital components of the adversarial trial process.

Take away that context, and the evidence may assume an entirely different meaning. It was once said that if you take text out of context, all you are left with is a con, and I think there is some truth to that.

Underlying the strict liability rule is the recognition that the jury are entitled to – and will – read the papers, watch the news, and listen to the radio, and in doing so, encounter information about their cases, unless the judge directs otherwise. Parliament did not intend that jurors, or witnesses in the case, or even the judge, should be subjected to an automatic media blackout! If that was not the case, we would have a system of wholly secret justice.

Indeed, courts have a healthy realism about the integrity of jurors, their ability to focus on the evidence and to follow judicial directions. In 2006, the Court of Appeal said,

“There is a feature of our trial system which is sometimes overlooked or taken for granted… juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright…”

We cannot too strongly emphasise that the jury will follow [the judge”s directions], not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair.

However, it must be true that by framing so carefully what may or may not be said about legal proceedings in the 1981 Act, Parliament recognised that much harm could be done by juries encountering information that falls outside that framework.

Put simply, we are not to have trial by newspaper.

All this poses a question, a rather significant question: How does a legal regime framed when the internet was but a gleam in the eye of Tim Berners-Lee cope when faced with the flow of information that now forms the fabric of our culture?

More specifically, what does the internet mean for our system of trial by jury? Is the trial process equipped, or even able, to regulate the information that jurors receive? How can we be sure that jurors decide their cases on the basis of the evidence they hear – and not what they looked up on their smart phones on the bus on the way to court?

To answer these questions, I will first consider two contempt cases I brought under the strict liability rule, before moving to address juror misconduct under contempt of court at the common law.

One of the first contempt cases I brought since coming to Office was that relating to the trial of a Ryan Ward . It was, the Divisional Court noted, the first time an internet-based contempt had been referred to them.

Mr Ward faced trial for murder in Sheffield Crown Court. The case had received a considerable degree of local publicity. It was the prosecution case that the defendant had murdered the victim following a gallant attempt he made to intervene in an attack by the defendant against a woman. The nature of Mr Ward’s defence, self defence and the absence of murderous intent, meant that the need for the media to abide by their obligations under the strict liability rule was as important as ever.

The jury was addressed by the trial judge in the following terms,

“Also, I would imagine by the nature of this case, and you’ll see there’s obviously press interest in it, there will be some reporting of this case. Again that’s a matter the press are free to report upon but you go on only the evidence you hear in this room, not the view other people may or may not have about it.”

He added another warning:

“Please don’t try and get information from outside this room about this case. Don’t, for example, consult the Internet, if there is anything out there on it. I’m not saying for one moment there is but don’t go there, don’t try and get it from anywhere else…”

During the early evening of the first day of the trial, the Daily Mail published an article under the headline, “Drink-fuelled attack: Ryan Ward was seen boasting about the incident on CCTV, alongside a photograph of the defendant holding a pistol with his finger on the trigger. The photograph remained accessible on the Daily Mail website for just under five hours; it was removed following a request from the police.

In the early hours of the following morning, The Sun published the same photograph on its website and in its print edition. The photograph in the print edition was cropped to conceal the gun; the online version was partially cropped, but that the defendant was holding a gun remained clear from the photograph. The photograph was taken down that evening, again following a request from the police.

When the matter was brought to the trial judge’s attention, he carefully asked whether any of the jury had seen the articles or the photographs.They had not. The case continued and Mr Ward was convicted of murder.

I brought proceedings for contempt. In this case, each defendant publisher conceded that publication of the photograph was wrong, and attributed the mistake to innocent error. But each – unsuccessfully – argued that the photograph did not create a substantial risk of serious prejudice.

The Divisional Court found the case to be proved; there was a substantial risk that a juror trying the case would see the photograph and be prejudiced by it. Each paper was fined £15,000 with £28,000 costs.

Far from highlighting any inability of the law to deal with internet contempt matters the Ward case clarifies, helpfully in my view, how the strict liability rule applies to internet publications, and what the consequential expectations on publishers are.

And although the two publications involved may not have welcomed the ruling, I think the clarity brought by the judgment has been welcomed by the media.

Such clarity was, after all, was one of the reasons which lay behind the enactment of the 1981 Act.

Shortly after bringing that case, I brought proceedings against the publishers of The Sun and The Mirror for their vilification of a man named Chris Jefferies during the investigation into the tragic death of Joanna Yeates in late 2010. It was clear from the outset of the press coverage during the investigation that the media “had their man”. Chris Jefferies was later to say that he became a household name, “for all the wrong reasons”.

There was nothing particularly new with this type of coverage; the media “feeding frenzy” is by no means a modern phenomenon. What was striking about the case was the rigour with which Mr Jefferies was pursued by the media during the period when the strict liability rule in the 1981 Act was supposed to be engaged.

The coverage sought to portray Mr Jefferies as plainly responsible for the death of the victim, associated him with allegations of child abuse, and referred to him as an “oddball”.

A melodramatic side piece titled, “1974 strangler never caught”, declared ominously “Last night police refused to rule out a link between the two killings” (which is hardly surprising: find me a single officer who will categorically rule out a connection between two similar unsolved crimes in the same area!). Another headline read, “The Nutty Professor” above a banner stating, “Bizarre past of Joanna Yeates murder suspect”.

The contempt was proved. What was interesting about the decision of the Divisional Court was that, not only did it consider the residual impact of the extreme publicity on any eventual juror, it also considered that the extent of the vilification may have deterred witnesses on behalf of Mr Jefferies, had he been charged, from coming forward, for fear of being associated with such an obviously guilty man.

Of course, not only was Mr Jefferies never charged, another man altogether was later convicted of the murder and sentenced to life imprisonment with a minimum term of 20 years.

So it is clear that the law of contempt does not permit trial by newspaper, whether that is in the print or online editions.

But neither does the law of contempt permit trial by Google.

(Of course, I say Google, I mean any internet search platform, Bing, Yahoo, Wikipedia, Twitter, Facebook, blogs, the list goes on…)

And this brings me onto common law contempt.

Common law contempt is intentional contempt. It is conduct which tends to undermine the administration of justice, done with the intention of undermining the administration of justice.

All juries are directed in robust terms about the need not to conduct their own research into the case. These robust instructions reflect the gravity of a juror’s task. Indeed, it is hard to think of a more serious or important civil duty that virtually any member of the public may be called upon to conduct.

It has always been necessary to direct jurors not to discuss the case with anyone, not to visit the scene of the crime, not to research the witnesses or defendant details. And now such directions extend to not researching the case on the internet.

To ignore those directions, intentionally, amounts to a contempt of court.

Intention, of course, is different to motive. While you may not desire, for example, to derail a trial, the law considers that by embarking on a course of conduct that is virtually certain to derail a trial, you have intended to bring about that result.

Before getting into the detail, a word about the internet and the law: am I trying to reconcile the irreconcilable?

It is often said that the system of trial by jury was the bulwark of our democracy, a bastion of freedom.

While few would dispute describing trial by jury in such terms, I wonder if for many it would seem more natural to describe the internet in that way: for many, the internet is now the champion of freedom. The connectivity it provides has gone some considerable way towards uniting the world as a global village. The role of social media in the Arab Spring uprisings is well documented.

The internet is surely, the argument goes, an unstoppable force for good?

Taking the argument a little bit further, in contrast to the liberation provided by the internet, we have the law; a rigid framework that is dour, unresponsive, and above all, lacks understanding of the changing role of technology in society.

I do not accept the premise of either assertion.

Certainly the internet has been and is a champion of freedom, and has played an important part in opening up some societies, and helping to achieve social change.

And certainly there have been times when the law has been unable to adapt to modern society, and those responsible for making the law have been unable to see the need for the law so to adapt.

But I want to argue this evening that the law of contempt is both adaptable and resilient in the face of the challenges of technology.

The strict liability rule very deliberately only applies to information which presents a substantial risk of serious prejudice or impedance.

About many criminal trials, there may be all kinds of prejudicial information “out there” on the internet. This could be in the form of archived news reports about the defendant’s previous court appearances, or it could be, to use the words of the old authorities in a modern context, mere chaff and banter about the case on someone’s Facebook page or Twitter feed.

The strict liability rule can be fairly relaxed about such material – it is unlikely to present a substantial risk of serious prejudice because it is a needle buried away in the haystack of the internet. (I say the strict liability rule can be fairly relaxed – it can be, but is not always!)

Indeed, most publishers are very careful not to link reports of live cases to archived news reports about the same defendant.

So the chances of a juror seeing such material are fairly slim, providing they haven’t gone looking for it. So, to use the words of Article 10(2) of the Convention, in view of those risks, attempting to purge the internet of all such material would not be “necessary in a democratic society”.

Trial by Google, however, is different.

The reason is this: I mentioned a moment ago that the internet is a haystack of material, scattered with the odd prejudicial needle, as it were. Trial by Google allows a juror to locate the haystack, find the needle, pull it out and ascribe significance to it that it simply would never have had otherwise.

It takes a minor risk and turns it into a major risk.

In doing so, trial by Google offends some foundational principles of our legal system.

The first principle is that a conviction, or for that matter an acquittal, should be based on evidence adduced in court, in accordance with established rules of evidence, subject to the supervision of the judge.

Let’s say a defendant being tried for grievous bodily harm had previously been tried – and acquitted – of rape. Let’s say the case against the defendant for GBH does not feature details of the rape allegations. And with good reason too: the strict rules of evidence relating to bad character do not allow that kind of highly prejudicial material to be adduced in the circumstances of this case. Even if the rape acquittal was admissible, the judge would have explained the relevance of the bad character evidence in careful terms. The jury trying the defendant are to base their verdict on the evidence adduced before them; the previous acquittal was excluded for good reason. Let’s say the judge has admitted some so-called bad character evidence, but that he was very careful in the way he crafted the directions to the jury about how it is relevant.

Now, let’s say one of the jury decide to take matters into their own hands by looking up archived news reports about the defendant – in defiance of the judge’s directions not to do that very thing.

Before too long, a bit of internet searching reveals that this is not the first time the defendant had been before the courts, and that he had in fact faced trial for rape. The rest of the jury must be told, the juror says to herself! There is information about the defendant that the judge is trying to withhold from us!

From this point onwards, the trial process is undermined.

The jury will no longer be able to deliver a verdict based solely on the evidence adduced before them; the role of the judge has been usurped, the defendant’s right to a fair trial is prejudiced. The press, who had been scrupulous in their reporting of the GBH matter, avoiding all mention of the defendant’s previous convictions, might as well have not bothered. The defendant may not have been tried by newspaper, but he was certainly tried by Google!

Of course, it is often hard to tell if the above research has been carried out, which leads us to the next fundamental objection to trial by Google:

Trial by Google offends the principle of open justice.

It should be clear to the defendant, the public, the victim and the prosecution what the evidence in the case is. If a jury is exposed to prejudicial material which, for whatever reason, is not before the court, the basis on which the defendant is convicted or acquitted will never be known.

The principle of open justice is met by our system of trial by jury through proceedings being in open court, through the adversarial scrutiny of the evidence, and through the judge’s directions to the jury before they retire to consider their verdict. All this is undermined by trial by Google.

A further facet of the principle of open justice is that evidence can be challenged, probed and questioned. Open justice is scrutinised justice. By definition, that is not so with trial by Google; not only is the basis of the jury’s finding unclear, but the parties will have been denied any opportunity to challenge the evidence which the jury itself gathered.

This returns us to our original question: is the law of contempt fit for purpose?

After all, we live in an information age. Searching for information about something we are unsure of is second nature for many; how can the law expect jurors to do something different? Surely only Mr Justice Canute would seek to stem the flow of the tide of information in this way?

Well the law can, and does, expect jurors to show restraint. The principles which underlie this expectation are nothing new.

All that is new is that there is an additional area in which jurors are required to show restraint.

The fundamental principles underlying the need for juror restraint are timeless.

The scenario I described a moment ago involving a juror searching for material about the defendant on the internet was, sadly, not fictitious. The juror’s name was Theodora Dallas and the defendant was called Barry Medlock. The trial was at Luton Crown Court in 2011.

For conducting her searches which revealed the previous acquittal of the defendant for rape, Dr Dallas was found by the Lord Chief Justice to be in contempt of court, and was committed to 6 months” imprisonment. Barry Medlock had to be retried before a fresh jury, and the victim had to give evidence again.

When passing sentence on Dr Dallas, the Lord Chief Justice said;

Jurors who perform their duties on the basis that they can pick and choose which principles governing trial by jury, and which orders made by the judge to ensure the proper process of jury trial they will obey, or who for whatever reason think that the principles do not apply to them, are in effect setting themselves up above the jury system and treating the principles that govern it with contempt…

The Lord Chief Justice went on to underline that the court’s robust approach was not borne out of lack of understanding of the significance and role of the internet.

Judges, no less than anyone else, are well aware of and use modern technology in the course of their work. The internet is a modern means of communication. Modern technology and means of communication are advancing at an ever increasing speed. We are aware that reference to the internet is inculcated as a matter of habit into many members of the community, and no doubt that habit will grow. We must however be entirely unequivocal.

Pausing there for a moment, I think I should highlight that it was our current Lord Chief Justice who, in December 2010, first permitted the use of live, text-based communication from the court room, initially on an interim basis, and later on a settled basis.

The allegation that the judiciary do not understand the internet is simply without merit.

Returning to the Dallas case, the Lord Chief Justice continued,

The problem therefore is not the internet: the potential problems arise from the activities of jurors who disregard the long established principles which underpin the right of every citizen to a fair trial.

I endorse those remarks.

Indeed, the internet has made the commission of many criminal offences much easier. It would be absurd to suggest that such conduct should no longer be criminalised on account of the ease with which such offences can now be committed.

Given the focus of my remarks has been on the need to prevent jurors from accessing prejudicial material, advertently or inadvertently, I have not spent time examining the potential for jurors to use the internet to communicate with defendants, or indeed witnesses, using the internet.

That is not so much trial by Google, but rather trial by Facebook Friend Request. That the law is apt to deal with such irregularities was demonstrated in the case of Frail and Sewart where a juror, Frail, initiated contact with a defendant, Sewart, whom she had just acquitted. The contact was made while the jury was still deliberating the guilt of the remaining defendants in what had been a long, multi-handed organised crime trial.

Details of the jury’s deliberations were revealed by Frail in the course of a Facebook chat she initiated with Sewart. In doing so, Fraill breached the prohibition against that very thing contained in section 8 of the 1981 Act, in addition to breaching the directions of the judge not to go on the internet to research the case.

Both denied the allegations, and a trial took place before the Lord Chief Justice, who, sitting with two High Court Judges, found the case proved.

Sewart was sentenced to two months’ imprisonment, suspended for two years, on account of her young child and the fact that she had already spent 14 months on remand prior to her acquittal. Frail received a term of 8 months’ immediate custody.

I mention the case as I conclude because it further demonstrates the flexibility of the existing legal framework law to this very modern form of offending. Save for a brief discussion at the contempt trial about the true meaning of LOL – opinions vary – there could have been no allegations that there was any lack of appreciation in the court room of the impact of modern technology on the trial process, nor what to do about it.

Avid followers of my contempt caseload will know that I have mentioned only a few of the recent cases I have brought.

I have also not mentioned the Law Commission’s excellent consultation on this very topic, which is due to close on 28 February. It raises important questions about, for example, whether some of the conduct I have outlined this evening should continue to amount to a contempt of court, or whether it should be classified as a criminal offence. I am sure the Commission would be delighted if you were to respond. I am proud to say that my Office has worked closely with the Law Commission during the consultation process, and I look forward to reading the final report next year.

But in what I have said, I hope that I have demonstrated that the legal framework for the jury trial in this jurisdiction starts from the premise that the jury are to be trusted, and establishes a framework in which their vital function is to flourish, and be preserved.

We have never allowed trial by newspaper; and neither do we allow trial by Google.

The Economist article I outlined earlier concluded with the exhortation to the new United States Attorney for the Eastern District of Louisiana to, and I quote, “stay out of the chat rooms”.

I can only conclude by imploring jurors in this jurisdiction to do likewise.