aamodt

[aamodt]

Begging your pardon

Every Thanksgiving, the President of the United States "pardons" a turkey. Unsurprisingly, there is no enumerated power for the President to do so in the US Constitution; it is merely a tradition. The President does however have the power to pardon people; Article II, Section 2 of the US Constitution states at Clause 1 that " ... he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." This power to reprieve and pardon has been used to varying degrees by Presidents; President Obama pardoned 212 people and commuted the sentences of 1,715 people, although this pales into insignificance when compared with Andrew Johnson (Lincoln's successor as President) who pardoned over 8,000 people, most of them ex-Confederates and including Jefferson Davis.

The President's powers under the Constitution are broad, and attempts to have the courts interfere have proved almost entirely unsuccessful. The Supreme Court has held that the President's powers  include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, and amnesties.

The President's power to pardon gained a lot of press recently with President's Trump's decision to pardon Conrad Black on 15th May this year. Lord Black was convicted in 2015 of fraud and obstruction of justice. He was sentenced to three-and-a-half years in prison. With timing that even the most credulous would consider to be more than a little co-incidental, following the publication  in 2018 of Lord Black's extremely complimentary book about President Trump, "Donald J. Trump: A President Like No Other", the full pardon was issued.

What is a pardon in this context? What does it do? And are there in fact limitations on what a President can do? Perhaps the most important limitation - other than the one relating to impeachment -  is that pardons only relate to federal cases; if a person has been convicted under local or state law then the President will not have the power to pardon. The issue about whether or not a President can pardon himself is one that has been debated since the Watergate scandal. The Department of Justice in 1974 issued a memo which set out why a President could not self-pardon, although President Trump and his supporters take a different view.

Pardons can be issued even when there are no legal proceedings. This was the case when President Ford pardoned former President Nixon for "all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974."

Although a Presidential pardon will restore the various rights that have been lost as a result of the pardoned offence and should lessen some of the stigma arising from a conviction, it will not erase or expunge the record of that conviction. Therefore, even if a person is granted a pardon, they must still disclose their conviction on any form where such information is required, although they may disclose the fact that they also received a pardon.

The system in the United Kingdom is different. The notion of a pardon is actually an emanation of the Royal Prerogative of Mercy, which over time has in effect become an emanation of the government despite the fact that it is still the Monarch that in the end actually does the pardoning.

A pardon in the United Kingdom, unlike a successful appeal in the courts where a conviction is quashed, does not have the effect of deleting the existence of the conviction, i.e. the pardon does not expunge anything. This fact is often overlooked. The powers of the Monarch to make and unmake laws was curtailed in declaratory terms in cases such as the Case of Proclamations [1610] EWHC KB J22 and the power to decide guilt or innocence is firmly the purview of the courts.

There are in effect two types of pardon: (a) a free pardon; and (b) a conditional pardon. The effect of a free pardon is that the conviction is disregarded to the extent that, as far as possible, the person is relieved of all penalties and other consequences of the conviction. The conviction is not quashed however; only the courts have the power to quash a conviction, and this respects the constitutional reality that the courts, and not a government, may determine a person’s guilt.

A modern application of the law was expounded in R v Foster  [1985] QB 115; [1984] 3 W.L.R. 401]. In Foster it was held that the consequence of a "free" pardon was to remove “all pains, penalties, and punishments whatsoever that from the said conviction may ensue”. However, it did not mean that the existence of the conviction was retroactively erased. As Watkins LJ pointed out Foster:

“… the Crown no longer has a prerogative of justice, but only a prerogative of mercy. It cannot, therefore … remove a conviction but only pardon its effects. The Court of Appeal (Criminal Division) is the only body which has statutory power to quash a conviction.”

The grant of a pardon in this context is therefore something of a pyrrhic victory. One can’t help but feel that people like the code-breaker Alan Turing, pardoned posthumously in 2013 for (no longer) gay sexual offences of which he was convicted in 1952, deserved something rather more absolute.

[aamodt]

On the (slow) march for reform

The recent and tragic shootings at two mosques in New Zealand has caused Kiwis to re-assess their surprisingly relaxed laws of gun ownership. Indeed, there are estimated to be almost 1.5 million legally-owned firearms in New Zealand. The Prime Minister, Jacinda Ardern, has vowed to reform New Zealand’s laws and had cited the current  laws as an example of “what not to do.”

Tragedies such as these shootings invariably provoke responses; the horror of Dunblane in 1996 caused the then government to enact the  Firearms (Amendment) Act 1997, which banned all cartridge ammunition handguns with the exception of .22 calibre single-shot weapons in England, Scotland and Wales, and following the 1997 General Election, the Labour government introduced the Firearms (Amendment) (No. 2) Act 1997, banning the remaining .22 cartridge handguns. After the Port Arthur shootings in Australia in 1996 (the same year as Dunblane), the Australian government passed the National Firearms Programme Implementation Act 1996, restricting the private ownership of semi-automatic rifles, semi-automatic shotguns and pump-action shotguns as well as introducing uniform firearms licensing.

One country where the meaningful reform of gun laws conspicuously does not take place after mass shootings is the United States of America. Despite the repeat of  tragedies such as Columbine and Sandy Hook, Federal law remains unchanged and stands little chance of ever being changed.

Gun control is a divisive topic and causes passions on both sides to run high but putting aside the politics of gun ownership in the United States and the influence of the National Rifle Association, the obstacle that advocates of gun-reform law cannot avoid is the Second Amendment to the Bill of Rights and, more important,  how that Amendment has been interpreted by the Supreme Court. The wording of the Second Amendment is well known:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

There are two schools of thought as to how the Amendment should be interpreted . The first school perceives that the right to bear arms has to be contextualised within the need for a state militia. The second school perceives the right to be a purely individual one (“ …. the right of the people to keep and bear Arms … ”) that does not require the context of a state militia.

These two schools of thought came into conflict in the Supreme Court case of District of Columbia v. Heller (07-290) in 2008 which challenged the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law (part of the District of Columbia Code). This law restricted residents from owning handguns, excluding those grandfathered in by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The Supreme Court split 5-4, with the majority, the opinion being authored by Justice Scalia, holding that (in broad summary):

The Amendment’s “prefatory clause” announces a purpose, but does not limit or expand the scope of the second part, the “operative clause”. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms;

The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males capable of acting in the common defence. The Anti-Federalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.

The Court’s interpretation was confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment.

The reasoning seems compelling. However, Justice John Paul Stevens produced a dissenting judgement every bit as compelling. He posited for instance why the Amendment did not simply state: “The right of the people to keep and bear Arms, shall not be infringed.” He also posited why the Amendment made no mention of hunting and/or self-defence as other rights’ declarations made at the time. And perhaps most important, Justice Stevens thought it improbable that a government would limit its ability to regulate the civilian use of weapons.

What the majority judgement did not do however was to say that the Second Amendment right is unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. There are restrictions that would be permissible and indeed restrictions that have been brought in a state level have in many cases been upheld as constitutional. That should give gun-control advocates some sense of optimism; state legislatures can - if the political will is there - legally restrict the sale and use of some kinds of weapon.

However, handguns are the most popular weapon chosen by Americans for self-defence in the home, and a complete prohibition of their use is - according to Heller - forbidden. Dunblane, the worst mass shooting in British history, saw the perpetrator, Thomas Hamilton, kill  sixteen five-year-olds and their teacher in four minutes. He did this with two 9mm Brownings and two Smith & Wesson M19s. Those four weapons were handguns.  A Harvard study in 2017 estimated that there were 113 million handguns in the United States. Gun-control advocates have got their work cut out.

[aamodt]

Rallying around the flag

In Spain last month the Spanish comedian Dani Mateo appeared in court after blowing his nose on the Spanish flag during a comedy sketch on television, leading to a complaint from the National Police Union that he had committed the crime of "publicly offending Spanish symbols". It seems odd at first glance that a modern European liberal democracy should have laws about such things, but it turns out that there are all sorts of rules that apply to the desecration of flags and national symbols.

The United Kingdom has no specific laws that prohibit the denigration of the ostensible national flag, the Union Jack (or the "Union Flag" to vexillology pedants).  Indeed, perhaps one of the worst things in the mind of the populace that one can do with the Union Jack is to hang it upside down, which happens more often than one would imagine. There are however Town and Country Planning regulations that govern which flags do and do not require the permission of the local planning authority to be flown (the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 and the Town and Country Planning (Control of Advertisements) (England) (Amendment) Regulations 2012). Whether or not the burning of the Royal Standard of the British monarch or of the Union Jack would have been an offence under the now-abolished common law offence of seditious libel is perhaps debatable. The burning of red poppies has however led to charges and convictions under the s. 5 of the Public Order Act 1986 back in 2011, although the Act is concerned with the disorder that can result from such behaviour (harassment, harm or distress) rather than the act in and of itself. This would presumably extend to the burning of the Union Flag.

Spain is not the only country in Europe to have laws concerning flag desecration: Article 188 of Greece’s penal code states that if a person insults the national anthem, destroys the flag or other national Greek symbols they can go to prison for two years or pay a fine. The code also deals with the desecration of foreign flags at Article 155. If someone “removes, destroys, deforms or pollutes the official flag or emblem of the sovereignty of a foreign state” or “or interrupts the national anthem” while in Greece, they could serve up to six months in prison or pay a fine.

Under the German criminal code it is illegal to revile or damage the German federal flag as well as any flags of its states in public. Offenders can be fined or sentenced to a maximum of three years in prison, or fined or sentenced to a maximum of five years in prison if the act was intentionally used to "support the eradication of the Federal Republic of Germany" or to "violate constitutional rights".

The Italians too take a firm line on this issue (prohibited by law (Article 292 of the Italian Penal Code) and punished with fines of between 1,000 and 10,000 euros for verbal desecration and with imprisonment of up to two years for physical damage or destruction. The Swiss also have laws on this: the destruction, removal, or desecration of national emblems installed by a public authority (e.g.,the Swiss flag, the Swiss coat of arms, the cantonal or municipal flags and coats of arms) is punishable by a monetary penalty or imprisonment of up to three years.

Flag-burning in the United States has long been a highly contentious issue. The First Amendment of the US Constitution specifically disallows the abridgement of speech, but there has been and continues to be a debate about which kind of speech is capable of protection. As Justice Oliver Wendell Holmes famously said in Schenck v. United States, 249 U.S. 47 (1919) "... protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic."

The question as to whether flag-burning was protected under the First Amendment came up for a consideration in Texas v. Johnson, 491 U.S. 397. A protester had burnt a flag, which was illegal under Texan law, at the 1984 Republican Convention in Texas. The Supreme Court held 5-4 that flag-burning was protected under the First Amendment. The case is particularly unusual in that Justice Scalia, a notoriously conservative Justice, joined with the majority while Justice John Paul Stevens, a liberal Justice, wrote a dissent, perhaps originating in part from his active and distinguished service in the US Navy in World War 2.

The response of the US Congress was to enact the Flag Protection Act of 1989, which was (predictably and almost immediately) struck down by the Supreme Court in United States v. Eichman, 496 U.S. 310 (1990). Since Eichman there have been many proposed Flag Desecration Amendments to the US Constitution and the text has been passed three times by the US House of Representatives. However, amending the US Constitution is not simple (broadly: a two-thirds majority in both houses of Congress is required as well as ratification by three-quarters of the States, each State carrying equal votes). In November 2016, President-Elect Donald Trump tweeted that no-one should be allowed to burn the American flag although he has not as yet put forward any proposals for a constitutional amendment.

One of the great ironies in all this is that  the United States Flag Code (Chapter 1 of Title 4 of the United States Code (4 U.S.C. § 1) states that "the flag, when it is in such condition that it is no longer a fitting emblem for display (for example, the flag being faded or torn), should be destroyed in a dignified way, preferably by burning."

[aamodt]

Guilt-Edged Verdicts

The acquittal of the England and County Durham cricketer Ben Stokes last month of affray has raised some interesting questions about what an acquittal means in reality for a defendant. Stokes, despite being acquitted and therefore not guilty of anything criminal whatsoever, was nonetheless shown on footage taken from CCTV cameras in central Bristol on the evening in question punching Ryan Hale in the face before Mr Hale fell to the ground, apparently unconscious. Hale’s friend Ryan Ali (a co-defendant in the trial and also acquitted) was left with a broken eye socket and heavy swelling to his face following the fight. Stokes’s acquittal for affray - the only offence with which he was charged - did not, it seems, secure him an acquittal in the court of public opinion on the basis of the responses from sports' writers and commentators. Many suggested that the England selectors should not have chosen him to play at the third Test Match against India, and Stokes will still have to face disciplinary proceedings from the England and Wales Cricket Board. Yet the fact remains: he was acquitted. Why, some would ask, should he continue to be stigmatised if he has been exonerated by the criminal justice system?

When he was making his closing speech to the jury in the trial of Jeremy Thorpe in 1979 at the Old Bailey (the so-called "Trial of the Century"), Thorpe's counsel, George Carman QC, said the following:

"You must not suppose that a not-guilty verdict is some sort of certificate of innocence awarded by the jury. In law, it means that the prosecution has failed to make out its case."

All lawyers know about this encapsulation of what the prosecution needs to do to secure a conviction. And Thorpe's acquittal, along with that of his co-defendants, did not prevent his career in politics from ending in ignominy and disgrace following the revelations during the trial about his relationship with Norman Scott. The same could be said of O.J. Simpson, whose trial in 1995 for murder ended in not guilty verdicts despite an overwhelmingly strong, almost impregnable prosecution case. His acquittal did not stop the ostracism that followed. He was, certainly in the eyes of many Americans and others around the world, guilty. A "not guilty" verdict does not therefore necessarily cleanse a defendant of the taint of the evidence and the charge that they faced.

How do other jurisdictions deal issues of guilt and innocence? In Scotland it used to be the case that there were two verdicts available: "proven" and "not proven". However, during the eighteenth century, Scottish juries started returning verdicts of "not guilty" and thereby introduced a third category. The result of this was that "not proven" was an acquittal used when the judge or the jury did not have adequate evidence to convict but is not sufficiently convinced of the defendant's innocence to bring in a "not guilty" verdict. In such cases the judge or jury is therefore unconvinced that the defendant is innocent, but guilt has not been proven beyond reasonable doubt. The verdict of "not guilty" however is different: it goes further than "not proven" and implies exoneration and blamelessness, whilst the "not proven" verdict carries with it an implication of guilt but with no formal conviction, and therefore the accused can be seen as morally guilty but without an opportunity to clear his or her name. Had Ben Stokes been tried in Scotland, one might assume that the jury, having seen what they had seen in the evidence, would have returned a "not proven" verdict, which is still an acquittal (and thus has an identical effect to "not guilty") but still contains the implication that the defendant was somehow at fault.

By comparison, the three verdicts available to Scottish judges and jurors seem simple to the seven verdicts that are available to Italian judges:

(1) Guilty;

(2) Acquittal because the act allegedly committed by the defendant never took place;

(3) Acquittal because the act allegedly committed by the defendant was actually committed by another party;

(4) Acquittal because the act was committed by the defendant, but is not considered a crime (e.g. self-defence);

(5) Acquittal because the act was committed by the defendant, but is no longer considered to be a crime by the law;

(6) Acquittal because the act was committed by the defendant, but the defendant is not liable for the crime, because the defendant was legally insane at the time;

(7) Not guilty because there is a cause that prevents the judge from actually deciding whether the defendant was guilty.

(2) and (7), it will be seen, very roughly correspond to the Scottish verdicts of "not guilty" and "not proven".

The Scottish three-verdict choice has not been adopted elsewhere in the world, although proposals are sometimes made, particularly in the United States, for juries to have a third verdict available to them. The binary options of "guilty" and "not guilty" are simple and easy to understand. But when one looks at the powers that criminal juries possess in England and Wales possess, to the extent that they can return verdicts of "not guilty" even if they believe that the defendant has committed the crime but should be acquitted regardless (e.g. Clive Ponting's acquittal in 1982 for leaking details of the sinking of the Argentinian ship the General Belgrano), perhaps a multi-verdict system is worthy of further exploration.

[aamodt]

Keeping off the grass?

Canada's recent decision to legalise recreational cannabis use and the case of Billy Caldwell, the twelve-year-old whose epilepsy is treated with cannabis oil, has meant that the debate about the legalisation of cannabis (and indeed drugs in general) has come to the fore once again. However, the criminalisation of cannabis is, when one looks at how long the plant has been cultivated and used by humans (which is as long ago as 8000BC), an undeniably recent phenomenon, regardless of whether one agrees or disagrees with its status as a controlled drug.

Medicinal use of cannabis by both the Greeks and the Romans was common. For instance, in the Histories of Herodotus (484-425 BC), the Scythians are described as indulging in cannabis vapour-baths (the equivalent of a modern-day sauna). Over the centuries the use of cannabis spread, and became commonplace in the Middle East and Persia. In 1619, hemp was being openly and legally grown on the banks of the Potomac in colonial Virginia. During Napoleon's 1798 invasion of Egypt, French soldiers, in a country where alcohol was not consumed, openly smoked cannabis instead, to the total lack of concern of the army's officers.

It is during the nineteenth century that one beings to see the first attempts to control cannabis; Brazil (1830), Mauritius (1840), Singapore (1870), Natal (1870), Egypt (1879) and Morocco (1890) passed laws controlling or banning the drug, partly in reaction to its use by labourers and slaves. Interestingly and in contrast, the Government of India in its "Report of the Indian Hemp Drugs Commission" 1894-1895, observed that: 

"Viewing the subject generally, it may be added that the moderate use of these drugs [cannabis] is the rule, and that the excessive use is comparatively exceptional. The moderate use practically produces no ill effects. In all but the most exceptional cases, the injury from habitual moderate use is not appreciable."

Piecemeal bans continued at the beginning of the twentieth century (the first in US being in the District of Columbia in 1906, and Jamaica in 1913), but it was during the 1920s that the first international moves were made to limit the trade and consumption of cannabis.

The International Opium Convention, signed at The Hague on January 23, 1912 during the First International Opium Conference, was the first international drug control treaty. The treaty was signed by Germany, the United States, China, France, the United Kingdom, Italy, Japan, the Netherlands, Persia, Portugal, Russia, and Siam. The Convention provided, "The contracting Powers shall use their best endeavours to control, or to cause to be controlled, all persons manufacturing, importing, selling, distributing, and exporting morphine, cocaine, and their respective salts, as well as the buildings in which these persons carry such an industry or trade."

A revised International Opium Convention International Convention relating to Dangerous Drugs was signed at Geneva on February 19, 1925. It introduced a statistical control system to be supervised by a Permanent Central Opium Board, a body of the League of Nations. However, in what proved to be a crucial intervention in the history of drugs, the subject of Indian hemp or hashish was presented to the Second Opium Conference at its sixteenth meeting by one Dr Muhammad Abdel Salam El Guindy, the Egyptian delegate and a physician and Secretary of the Royal Egyptian Legation at Paris and Brussels. He denounced "Hashism" which he said caused between 30-60 per cent of mental illness in his country. He said that 

"... in support of this contention... there are three times as many cases of mental alienation among men as among women, and it is an established fact that men are much more addicted to hashish than women." 

Hashish addicts, he said, were regarded as useless derelicts:

"His eye is wild and the expression of his face is stupid. He is silent; has no muscular power; suffers from physical ailments, heart troubles, digestive troubles etc; his intellectual faculties gradually weaken and the whole organism decays. The addict very frequently becomes neurasthenic and eventually insane." 

Dr El Guidy's address was extremely influential, and as a consequence the Second Convention contained provisions that obligated the signatories to prohibit the use of cannabis (and other drugs) for non-medical and scientific purposes (III,5) and to take steps to prevent the international trafficking of Indian hemp (IV,11,(2)). It is from this convention (a joint accord if you will ...) that the basis for the modern control and criminalisation of cannabis can be found, as well as correlating its effects and undesirability (at least generally) with that of opium.

Cannabis became illegal in the United Kingdom on 28th September 1928 when the Dangerous Drugs Act 1925 came into force and it has remained illegal ever since. Medical and research use was mandated under s.7 of the Misuse of Drugs Act 1971 provided that authorisation is given by the Secretary of State, which is indeed what Sajid Javid did in the case of Billy Caldwell. Opinion remains divided on the issue. Some call for total legalisation (as has occurred in many countries). Others think that cannabis is harmful, with proven links to increased instances of schizophrenia and other forms of mental illness. What is indisputable is that cannabis remains, according to the United Nations' figures, the most widely produced, trafficked, and consumed drug in the world. Clearly, this is a debate that will not run out of puff.  

[aamodt]

Rights of Passage

Passports have been in the news a great deal recently. The government's decision to award the contract for the printing of the UK's post-Brexit passports to the Franco-Dutch company Gemalto, and not to the British (but French-sounding) company De La Rue, has taken up many column inches, as has the furore that has resulted from the Home Office's mishandling of the immigration status of the Windrush generation.

We use passports all the time, not only to travel but to open bank accounts and generally to prove to people that we are whom we say we are. But what are passports? And how long have we been using them? And is it really true that the Queen doesn't have one?

A passport is simply a document issued by a country that certifies the nationality and identity of its holder (for example if you look inside a British passport you will see that it asks (but does not grant) that the bearer is allowed "... to pass freely without let or hindrance ..." and that the passport is " ... proof that the holder has the right of abode in the UK"). According to the English etymologist George William Lemon (1726-1797), passport signified permission to pass through a "portus" or "gate", but he noted that an earlier work had contained information that a traveling warrant, a permission or license to pass through the whole dominions of any prince, was originally called a pass par teut ("travel everywhere").

The concept of a passport has been around for a while. One of the earliest known references to a passport is found in the Bible: Nehemiah 2:7-9, dating from approximately 400 BC, states that Nehemiah, an official serving King Artaxerxes I of Persia, asked for permission to go to Judea; Artaxerxes gave him a letter "to the governors beyond the river" requesting safe passage for him as he traveled. Later, such was the might of Rome that a Roman citizen could travel throughout the Empire in safety and without bother by merely uttering the words "civis romanus sum" ("I am a Roman citizen").

The earliest reference in England to a passport system is found in the Safe Conducts Act of 1414, passed during the reign of Henry V.  This is even mentioned in Shakespeare’s Henry V where Henry, before Agincourt, declares: "He which hath no stomach for this fight, let him depart; his passport shall be made." From 1540 such documents were issued by the Privy Council, with that responsibility ultimately becoming the responsibility of the Secretary of State (which it still technically is) from approximately 1800, with passports bearing the personal signature of the Secretary of State until 1947. Passports were originally written in Latin and English until 1772, and then French alone until 1858, when they were written in English.

However, despite the fact that passports have been around for some time, the prerequisite of having one for the purpose of international travel is a comparatively recent phenomenon. Although William Hazlitt (1778-1830) in Notes of a Journey through France and Italy (1825) makes reference to "... having our passports and luggage examined ..." when he reaches the (then) Kingdom of Sardinia, it was by no means compulsory to possess such a document to travel abroad. However, everything changed with World War 1. As the historian A.J.P. Taylor wrote in English History 1914-1945: "Until August 1914 a sensible, law-abiding Englishman could pass through life and hardly notice the existence of the state beyond the post office and the policeman. He could live where he liked and as he liked. He had no official number or identity card. He could travel abroad or leave the country forever without a passport or any sort of official permission."

The first modern British passports, a consequence of the British Nationality and Status of Aliens Act 1914, were issued in 1915 and consisted of a single page, folded into eight sections and covered in cardboard. It was usually valid for two years and featured a personal description, including details such as "shape of face", "complexion", and "features", as well as bearing the holder's signature and photograph.

The League of Nations, the precursor of the United Nations, agreed a form of passport standardisation in 1921; the Paris Conference on Passports & Customs Formalities and Through Tickets specified the size, layout, and design of travel documents for forty-two nations. It ratified the template for a thirty-two-page booklet that was exactly 15.5 cm x 10.5 cm (6.1 inches x 4.1 inches) with the first four pages detailing the bearer’s facial characteristics, occupation, and residence. It is from this template that the original dark-blue British passport emerged and passport standardisation has endured, although biometric data, holograms, watermarks, perforated numbers, fluorescent threads, and embossed letters have made their manufacture more complicated.

And so: does the Queen have a passport? Although all other members of the Royal Family do, she does not for the simple reason that because British passports are issued in her name, she does not need to possess one. All of us who have wrestled with the inscrutable forms issued by HM Passport Office will I think be unable to suppress our envy.

[aamodt]

Link for DC v Heller. Shows how the second amendment can be interpreted in two very different ways. Opinion by Scalia (conservative) and dissent by J.P. Stevens (liberal), probably the two brightest jurists to sit on SCOTUS thus far.

[aamodt]

A genuinely fascinating piece by Jeffrey Toobin on the history of the Second Amendment.

[aamodt]

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Justice Robert Jackson, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

[aamodt]

What’s In A Name?

Many of us who grew up watching "Blue Peter" will be able to remember the bafflement we felt when its presenters would routinely use the phrase "sticky-backed plastic" when referring to Sellotape (or Fablon, depending on how old you are). Why did they call it that when no-one else in the world seemed to? We now know of course that the reason was to do with the BBC's policy of not mentioning brand names on air; "Sellotape", much like "Hoover", was an example of a brand-name and/or trade mark becoming practically synonymous with the product, much to the chagrin of their rivals no doubt.

Trademarks are everywhere these days, and their value, as well as the complexity of their registration and their protection, is big business. But what can you trademark?  

Many words that we use in everyday speech and writing are trademarks. Surprising examples that are or have been trademarks include "aspirin" (a trademark of Bayer), "escalator" (a trademark of Otis Elevators Inc.), "cats-eyes" (a trademark of Reflecting Roadsteads Limited), and - perhaps most bizarrely of all - "heroin", also a trademark of Beyer, and which until 1913 was used as a prescribed medicine to treat asthma, bronchitis and tuberculosis.

What other restrictions are there? As one would imagine, restrictions are not entirely consistent worldwide, as there are different regimes for registration; in the UK there is the option of registering here, but there is also the option of registering an EU-wide trademark, as well as the option of registering for an International Trade Mark under the Madrid Protocol. Very broadly, restrictions relate to trademarks that:

- are deemed devoid of any distinctiveness (i.e. they are generic and vague); - just describe the product itself (e.g. "wine"); - resemble an existing trademark; or - are offensive.

With regard to offensiveness, this year the United States' Supreme Court decided by a resounding 8-0 result (Matal v. Tam, 5. 137 S. Ct. 1744 (2017)) that the application made by the Asian-American band "The Slants" to have their band name registered as a trademark could not be refused by the US Patent and Trademark Office; the Free Speech clause of the First Amendment granted the band that right, the perceived offensiveness (disparagement of group of people) of the phrase notwithstanding.

Perhaps one of the best-known "offensiveness" trademark cases in the UK was a case brought against French Connection UK for their use of the trademark "FCUK" which was an acronym and (so it was argued by those who objected to it) an offensive anagram.  A retired businessman applied to have the trademark struck off the register as having been registered contrary to section 3(3)(a) of the Trademarks Act 1994 on the basis that it was "contrary to public policy or to accepted principles of morality". At a hearing at the UK Trade Marks Registry in 2007, it was held that the trademark would not be struck off. The line of reasoning that the hearing officer adopted, which relied on context and perception, was perhaps most memorable for using the example of King Cnut.

Trademarks, as is perhaps obvious, do not need to be words. They can (under UK law) be: words; sounds; logos; colours; or a combination of any of these.

The issue of colour has been a hot topic over the last few years. Christian Louboutin is famous for designing women's high-heeled shoes with a vivid red-lacquered sole (Pantone 18 1663TP to be specific), and he has argued that this colour motif is a trademark. Indeed, that motif is a registered trademark in the UK.

However, Louboutin has had mixed results in other jurisdictions. In 2011, Louboutin and Yves Saint-Laurent engaged in a year-long battle in the United States over the YSL's right to sell shoes that were red all over, including the sole. A New York federal judge denied Louboutin’s claim that YSL’s monochrome version was infringement, but Louboutin was able to retain its trademark for red soles that contrast with the rest of the shoe.

In 2013, the Dutch company Van Haren was forced to cease production of red-soled shoes when the District Court in The Hague ruled in favour of Louboutin. However, the court sought a preliminary ruling from the CJEU on the issue of whether the sole colour was "shape which gives substantial value to the goods" (i.e. not registrable). Oral argument was heard by the CJEU in the case in November 2017, although the opinion of the Advocate-General was not helpful to Louboutin.

In February 2017 the Supreme Court of Switzerland denied Louboutin's demand for trademark protection, finding that the red soles were merely an aesthetic element, which goes to show that claiming a monopoly on a colour should not always be taken as red ...

[aamodt]

Navigating a path to independence

In the classic 1949 Ealing Comedy Passport to Pimlico, a small part of London (Pimlico) declares itself independent from the rest of the United Kingdom on the basis that the residents of Pimlico discover an old manuscript that reveals that where they live is actually part of the Duchy of Burgundy. The new-found independence of Pimlico causes all sorts of problems and after many Ealing-Comedy-type shenanigans, Pimlico - predictably - rejoins the United Kingdom.

The basis for the film is alleged to come from a real incident in Canada when in 1943 the maternity ward of a hospital was temporarily declared not to be part of Canada by the Canadian government so that when Princess Juliana of the Netherlands gave birth, the baby (Princess Margriet) was born on Dutch territory, and would not lose her right to the Dutch throne. 

Scenarios - real or imagined - such as these raise interesting legal and conceptual issues. How does somewhere become a country? Given the recent referendums on independence held in Iraqi Kurdistan and Catalonia, who decides when somewhere attains statehood? Is it enough just to have a referendum that decides the will of the people? And what happens if a territory looks and acts like a state but doesn't become recognized as such? 

International Law as embodied in documents such as the Charter of the United Nations (1945) and the International Covenant on Civil and Political Rights (1976) are clear about people's rights of self-determination. However, it is not that simple. For instance, to create a new country you will inevitably need to make an existing country smaller, which creates legal and political problems, not least when armed conflict has arisen.  

For guidance on what a state actually is in international law, the clearest expression is a pre-UN document called the Montevideo Convention on the Rights and Duties of States (1933). It says that a state must have (1) a defined territory; (2) a permanent population; (3) a government and (4) a capacity to enter into relations with other states. As we will see, criterion (4) – in terms of relations and recognition – is usually the biggest problem for territories aspiring to statehood.

For an idea of how the process works, we have recent examples to draw on: East Timor, which achieved independence from Indonesia in 2002 and South Sudan, which gained its independence from Sudan in 2011. 

The first step is to have a referendum. Apart from its obvious democratic merits, it is a necessary expression of self-determination. There is precedent for this. For example, when Norway became a separate nation from Sweden in 1905, there was a referendum (won with 99.9% of the vote). In East Timor (1999) and Sudan (2011) there were also referendums, with both results clearly indicating a wish for independence. 

The second step is then to get the country of which you are a part to accept the result. Indonesia accepted the 1999 referendum and Sudan accepted the result of the 2011 referendum, so no problems arose. However, as we have seen with the referendum in Catalonia and the 2008 declaration of independence by Kosovo from Serbia (where the latter does not recognize the former as a state), this is not always straightforward. 

The third step is recognition by the outside world. It might be assumed that the United Nations is the body that is responsible for this. In actual fact it isn't; recognition is the purview of other sovereign states and is separate to membership of the UN, which is something different. This is why for instance the Palestinian territories are recognized by some counties as "the state of Palestine" but it only possesses "observer status" at the UN, i.e. it is not a full member. Kosovo, whose independence is recognized by 111 countries, is not a member of the UN at all. In the cases of East Timor and South Sudan, both countries were recognized and they are both full members of the UN.

Can you still be a country and not be part of the UN? Yes. For instance, the Vatican City is a sovereign state but is not a full member of the UN. There are also various territories and countries (as we have seen with Kosovo) that argue that they are states but that remain outside the UN. In fact these states have started their own version of the UN, the Unrepresented Peoples and Nations Organization (UPNO). It includes states one would expect (Somaliland, Taiwan, Tibet) and others that one would not (Brittany, Savoy (both in France) and Washington DC, which is not a state but rather a federal district with no representation in Congress).

However, it can't be denied that UN membership confers benefits for countries. Quite apart from prestige and status, UN membership gives countries real advantages. e.g. the benefits of international law, help and loans from the World Bank and the IMF, and the benefits of trade laws. It thus remains the case that if you want to be a fully-fledged sovereign nation, the imprimatur of the UN is still crucial. And if Liechtenstein, Monaco and San Marino managed to achieve UN recognition, perhaps an independent Pimlico is not that far-fetched after all?

[aamodt]

Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch)

The High Court has held that "it is at least arguable, as a matter of concept" that a television format can be protected as a dramatic work under the CDPA 1988, s.1(1)(a) (link to judgement below). However, before everyone gets too excited:

1. The case was specifically concerned with formats subsisting in game-shows and quiz-shows. 

2. The case is not a departure from Green v New Zealand Broadcasting Corporation. Green says that a format is capable of existing, but factually Hughie Green could not establish in that case that one did. 

3. No specific criteria for protection/qualification are set out. Drawing the pre-existing case-law together (including Green) Snowden J sets out two established and general criteria: "(i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form." These criteria rely heavily on Green. This is not new law. 

4. The case resulted in the defendants being granted summary judgement at the case management stage. This was not a case of a court saying "yes, there is a format here and the defendant infringed it". The court did not even get that far. 

5. The courts have already looked at the issues of formats and abstract underlying rights on various occasions. See for instance: - Baigent v Random House & Anor [2006] EWHC 1131 (Ch) (narrative structure underlying "The Da Vinci Code"); - Meakin v British Broadcasting Corporation & Ors [2010] EWHC 2065 (Ch) (proposals for game-show formats); - The Ukulele Orchestra of Great Britain v Clausen & Anor (t/a the United Kingdom Ukulele Orchestra) [2015] EWHC 1772 (IPEC) (visual, aural and conceptual similarity between two ukulele orchestras).

Link to judgement: 

http://www.bailii.org/ew/cases/EWHC/Ch/2017/2600.html

[aamodt]

Impeachment Matters

A few weeks ago Daniel Kannen, who was the US State Department's science envoy, sent a letter of resignation to President Donald Trump. The first letter at the beginning of each paragraph of his letter spelt out the acrostic "IMPEACH". There have been various calls from President Trump's opponents for him to be impeached. But what is impeachment? How often has it been used? And does the same thing exist here in the United Kingdom?

The impeachment of a US President is governed, as you would expect, by the United States Constitution. The House of Representatives has the exclusive power to decide whether to impeach or not ("impeachment" is technically the process whereby the House formally charges someone with an offence). If the House votes by a simple majority on a resolution to impeach on a charge then the Senate will hear the trial which is presided over by the Chief Justice of the Supreme Court (famously, during Bill Clinton's impeachment hearing in 1999, the then Chief Justice William Rehnquist wore a robe with gold stripes on each sleeve, drawing inspiration from a production of "Iolanthe" that he had seen). A two-thirds super-majority vote of the 100 senators is required to convict, i.e. 34 votes would be needed to avoid removal from office. If conviction is the result then the official is automatically dismissed.

Although nineteen US federal officers have been impeached to date, of those convicted the vast majority have been federal judges. Of the two US Presidents who have been impeached (Andrew Johnson (1868) and Bill Clinton (1999)), both were acquitted. Contrary to popular belief, Richard Nixon was never impeached; he resigned in 1974 when it was clear that the House would vote to impeach because of his complicity in the Watergate cover-up.

Which kinds of offence can a President be impeached for? Here the US Constitution is less clear. Article II, Section 4 states that: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors." The last sentence has been the source of a huge amount of debate. Indeed there are two books on just these words alone. The phrase was used in the early impeachment proceedings of the House of Commons between 1376-1450. However, there has been disagreement about what it means under US law. James Madison, 4th President and the man largely responsible for drafting the US constitution (so one would assume he knew what he was talking about), said that impeachment was necessary to defend the USA against "the incapacity, negligence or perfidy of the chief Magistrate." Benjamin Franklin said that impeachment was necessary when a president had "rendered himself obnoxious." These sentiments are different from what is expressed in the words "other High Crimes and Misdemeanors." Indeed there are some who argue that given that neither High Crimes nor (High) Misdemeanours are identifiable as being crimes at all, they are a broader category that is capable of encompassing very serious (non-criminal) mis-behaviour generally. The confusion over this is not likely to resolved in the near future; the Supreme Court in Nixon v. United States (1993) (nothing to do with the former President) held that it had no power to review the trial of an impeachment because that was the sole purview of the House and the Senate.

Does impeachment exist in the United Kingdom? Well, yes and no. The House of Commons Library has published an entire briefing paper on this subject (Number CBP7612, 6 June 2016; it is well worth a read). Although there is no legislation or Standing Order relating to impeachment, it is nevertheless a privilege of parliament that still technically exists because no-one has explicitly got rid of it. The procedure is similar to the US: the House of Commons draws up articles of impeachment which are engrossed and sent to the House of Lords for trial. If convicted by a majority by the Lords, the House of Commons decides whether or not to carry out the judgement.

The last impeachment in Parliament was the unsuccessful one of Lord Melville in 1806. There have been other attempts to use it since however. In 2004 a group of MPs (including Alex Salmond and Boris Johnson) attempted to table a motion calling for the impeachment of Tony Blair over the Iraq War. However, the motion was never allocated time to be debated by the House of Commons and Mr Blair resigned as Prime Minister in 2007.

Thus although impeachment still technically exists among the gauzy ghostly metaphysical cobwebs of the British Constitution, its use is redundant. For one thing it is doubtful whether the procedure adheres to any accepted contemporary standard of procedural fairness. For another, there would be something extremely odd in today's age about the elected House of Commons seeking judgement from the unelected House of Lords.

[aamodt]

In the public interest

The horrific fire at Grenfell Tower on 14th June in West London is thought to have claimed the lives of at least eighty people. The police will not know the final number of deaths before the end of this year, such is the scope of the task that confronts the authorities. The role of the flammable cladding on the outside of the building led to inquiries being made as to whether such cladding had been used elsewhere. The Prime Minister Theresa May informed the House of Commons on 28th June that the cladding on one hundred and twenty buildings in thirty-seven different local authorities had failed fire tests. Clearly, hundreds if not thousands of people were (and are) at risk.

The scale of the disaster has led, as is often the case in situations such as these, to calls for a public inquiry. It seems as though that when public disasters or scandals occur, the calls for "a full and independent inquiry" are made with greater frequency and amplitude these days. But what are public inquiries? Where do they come from? Who says that they can happen? And – perhaps most important – do they really change anything?

Public inquiries are a relatively recent phenomenon. Before their advent, the public inquisitorial role was one that was fulfilled by parliament, via a device that is well-known and still used today, that of the Parliamentary Select Committee. However, Select Committees have their problems. First and foremost is that they can vote along party lines, as was seen in the report by the House of Commons Culture, Media and Sport Committee that recently investigated allegations of phone-hacking at News International in 2012. The report, which held that Rupert Murdoch was “not fit” to lead News International, was only endorsed by six out of ten MPs, with four Conservatives MPs branding the report “partisan”.

The problem of MPs voting along party lines is not new. In 1912 a Parliamentary Select Committee was appointed to investigate allegations of government corruption regarding a public contract for telegrams. The majority of MPs from the ruling party exonerated the government while the minority did not.

After another scandal in 1921 involving the alleged destruction of incriminating documents by government officials, parliament finally decided that it would be wise to hand such matters over to someone else, and hence the Tribunals and Inquiries (Evidence) Act 1921 came into existence. If both Houses resolved that an inquiry was necessary then an independent inquiry, complete with all the powers that were possessed by the High Court, would be instituted. During the currency of the 1921 Act, there were over eighty inquiries, and they included in inquiries into: the Aberfan mining disaster in 1967, the shootings at Dunblane Primary School in 1996, Harold Shipman (2005) and "Bloody Sunday" (aka the Saville inquiry) (2010). Separate to the 1921 Act were powers to institute inquiries under specific pieces of legislation, e.g. the Stephen Lawrence Inquiry was brought under the Police Act 1996.

In 2004 the government decided that an overhaul of the legislation relating to public inquiries was needed and that a broader, more encompassing framework was necessary. The result of this was the Inquiries Act 2005 (which, among other things, repealed the old 1921 Act) and the concomitant Inquiry Rules 2006. The new Act did various things. For instance, it was no longer down to parliament to decide if an inquiry was required; that decision was now down to a minister. Also, the "statute specific" powers that existed previously were all (for the most part) consolidated, meaning that the new 2005 Act was the sole framework.

However, there – confusingly – exists another species of public inquiry, the “non-statutory” public inquiry. Examples of these include the "Arms-to-Iraq" inquiry and the Hutton ("sexed-up" dossier) inquiry. These inquiries derive their power from the executive powers of ministers and not from a statute. Non-statutory inquiries have certain advantages: the inquiry will not be bound by the strictures of the 2005 Act or the 2006 rules. A good example of this was the Hillsborough Independent Panel, which – although not a public inquiry in the full-blown sense – was a form of inquiry tasked with managing and reviewing the disclosure of the vast amounts of evidence that had built up in relation to the Hillsborough disaster. A non-statutory public inquiry can if necessary be converted into a statutory public inquiry, a good example of this being the inquiry into the death of Bernard Lodge at Manchester Prison in 1998.

So, what is the point of public inquiries? Given the Hillsborough debacle (an inquest, a public inquiry (with interim and final reports), Sir Murray Stuart-Smith's investigation, followed (eventually) by an independent panel and a second inquest), it is understandable if the public have a poor perception of this process. However, public inquiries, with their focus on accountability and prevention, achieve worthwhile things. After the 1989 Taylor Report and all of its recommendations, the circumstances that led to Hillsborough would not be able to happen again in the UK. To date, we have had no repeat of Hillsborough. Or anything remotely like it.

[aamodt]

Media Law Update: (1) Monroe v Hopkins and (2) Shakil-Ur-Rahman v ARY Network Ltd

Monroe v Hopkins [2017] EWHC 433

On 4th November 2012, Sally Bercow, the wife of the Speaker of the House of Commons, published a tweet that has since become infamous. It read:

“Why is Lord McAlpine trending? *Innocent face*”

 As is now well known, Alistair McAlpine (Lord McAlpine of West Green) had, at the time of Ms Bercow’s published tweet, been wrongly implicated in a child-abuse scandal that had been reported on television and in the press, and that implication resulted in false rumours circulating on Twitter and - as a consequence - his name started trending. Ms Bercow’s tweet resulted in libel proceedings being brought by Lord McAlpine against Ms Bercow. In Ms Bercow’s case, the courts were not able to accept her explanation that the use of “innocent face” was literal and contained no irony or insincerity (McAlpine v Bercow [2013] EWHC 1342 (QB), at ¶84). Ms Bercow ended up paying £15,000 plus legal costs.

 It was rash and ill-considered use of Twitter that led to another and recent high-profile libel action. It was brought by the food writer Jack Monroe against the newspaper columnist and former LBC presenter Katie Hopkins. The facts of the case are doubtless now well known, but to recap very briefly: on Saturday 9th May 2015 there was an “anti-austerity” demonstration in London. It became violent in parts and in particular a memorial the women of World War II was daubed with offensive graffiti. Laurie Penny, a columnist for the New Statesman tweeted that she thought that the vandalism was “fine” and stated “I don’t have a problem with this”. Ms Penny’s comments generated a great deal of comment on Twitter and on conventional media, including from the defendant, who expressed herself in typically forthright terms.

Then, on 18th May, some time after the initial Laurie Penny tweet, the defendant mentioned the claimant in a tweet and wrote: 

“@MsJackMonroe scrawled on any memorials recently? Vandalized the memory of those who fought for your freedom. Grandma got any more medals?” (“Tweet 1”). 

The claimant responded with outrage at this and demanded that the tweet be deleted, that there be a donation of damages to charity and that the defendant apologize. On the same day the defendant deleted Tweet 1 but did no more. However, the defendant then published a second tweet that read: 

“Can anyone explain to me - in 10 words or less - the difference between irritant @PennyRed [Laurie Penny] and social anthrax @JackMonroe.” (“Tweet 2”). 

The defendant eventually tweeted on 2nd June:

“@MsJackMonroe I was confused about identity. I got it wrong” 

but did not (as the claimant’s lawyers had asked) pay the claimant’s costs or make a donation to charity in lieu of damages.

The case proceeded to trial. Warby J found that the claimant had been libelled and awarded damages of £24,000 (£16,000 for Tweet 1 and £8,000 for Tweet 2). The judgement is both interesting and important for various reasons:

The judgement contains (as an appendix) a  detailed exposition (the first time in a reported libel case) on how Twitter actually works, complete with “at-replies”, “at-mentions”, ’direct  messages“. ”likes“, ”re-tweets“, and ”blocking". Assuming that Twitter continues to function in the same way, Warby J’s exposition will doubtless be the standard reference in future Twitter libel cases.

It contains (or rather repeats) the post Defamation Act 2013 “are the words complained off capable of being defamatory?” test now required in libel cases, although one of the planks, that the Claimant needs to prove that a publication has caused or is likely to cause serious harm (i.e. the old common law presumption of damage no longer applies), is a subject of the Court of Appeal hearing (heard in November 2016) of Lachaux v Independent Print Limited & Ors [2015] EWHC 2242 (QB). That notwithstanding, the questions that the court asks are: (1) which meanings were borne by the publication(s)? (2) are those meanings defamatory? (3) if (2) is met, has the claimant proved that the publication has caused or is likely to cause serious harm? In Monroe, Warby J considered the relevant serious harm factors suggested by Dingemans in Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB). It is interesting that Warby J (at ¶69) states that: “Where an allegation has a seriously defamatory tendency and is widely published  a claimant may choose to rely on those facts alone … as the basis for an  inference that serious harm was actually caused … in some cases it may be enough. It is certainly not necessary in every case to engage in a detailed forensic examination of the precise factual picture …” In his finding that the serious harm threshold was met he simply observed that he did so “… on the straightforward basis that the tweets complained of have a tendency to cause harm to this claimant’s reputation in the eyes of third parties, of a kind that would be serious for her.” The extent of the publication, despite being dealt with in the section proceeding this part of the judgement, did not, it would seem, explicitly form part of the serious harm analysis, but did form part of the damages calculation (¶79). What is clear however is that the libel courts, and in particular Warby J, are keen to avoid a formulaic methodology of the kind that lawyers saw in Reynolds v Times Newspapers [2001] 2 AC 127 (Lord Nicholls’ famous non-exhaustive list of public interest, qualified privilege circumstances, which nevertheless became - with certain first-instance judges - something of a tick-box checklist). However, what is certain is that the more “serious harm” rulings that we get, the more lawyers will be able to create a matrix that will more easily determine which side of the line a case falls and judges will find it more difficult to resist the logic and force of the precedents presented to them.

The argument put forward by Ms Hopkins that the “Twittersphere” requires some kind of special consideration because it is not a serious arena of debate and expression was not accepted by the court. The argument advanced was that the hypothetical Twitter user should be imbued with a more than usual amount of skepticism because he or she     was not reading a newspaper and that Twitter was akin to the “Wild West”.

What lessons can be learned from this case? First: the notion of “oh it’s just Twitter – no-one takes it seriously” needs to be discounted once and for all. That is not how the hypothetical Twitter user sees the social network. Second: as Warby J rightly observed, this was an occasion when the Offer of Amends procedure under the Defamation Act 1996 would have been the best course of action for the Defendant and could have saved her a great deal of money and trouble. Or to put it another way: when you find yourself in a hole, stop digging. 

Shakil-Ur-Rahman v ARY Network Ltd & Anor [2016] EWHC 3110 (QB)

It is often the case that the factual specifics of a legal action, as well as giving a cause of action in libel, can provide alternative causes of action. Examples include breach of confidence (Francome v Mirror Group Newspapers [1984] 1 WLR 892), trade mark infringement (Boehringer Ingelheim Ltd v Vetplus [2007] EWCA Civ 583), and conspiracy (Gulf Oil (Great Britain) Ltd v Page [1987] Ch 327). The cause of action that perhaps has the most in common with defamation (other than malicious falsehood of course) is an action for harassment under The Protection from Harassment Act 1997. Section 3 of the act created a tort, and the conduct which the act is designed to prevent includes speech (s.7(4)). It follows that there is scope for overlap (see Cray v Hancock(2003) (QB) (unreported) & Sunderland Housing v Baines [2006] EWHC 2359 QBD, where the facts of the cases allowed parallel libel and harassment claims). The extent of that overlap has again been explored in the case of Shakil-Ur-Rahman v ARY Network Ltd & Anor [2016] EWHC 3110 (QB).

In Rahman, the Claimant complained of libel and harassment in respect of programmes broadcast on a television channel. The claimant was successful in respect of the libel claims but Sir David Eady (sitting as a high court judge) dismissed the claims for harassment. The judge held that there “[had] to be a minimum threshold of seriousness before the statutory tort can be established.” [¶113] and that the threshold had been crossed. However, the judge also held that for harassment to occur in the case at hand, the impact of the harassment on the claimant (a crucial ingredient) would have needed to have occurred in the court’s jurisdiction. The claimant at the time the broadcasts were being made was in Dubai. For that reason, the harassment had not occurred within the jurisdiction. Two interesting things emerge from this case: 

Dismissing the harassment claim Sir David said “The position is not comparable to that in libel. If defamatory words are published here, then the tort is complete wherever the particular claimant happens to be (subject to s.1 of the 2013 [Defamation] Act). Where harassment is alleged, on the other hand, the tort is not complete unless and until it impacts upon the person concerned. One can be libelled without knowing about it at the time, but not so with harassment. It makes no sense to say that a person was harassed but knew nothing about it.” Moreover, the harassment needs to have taken place in England and Wales. There is therefore – on this issue – a very clear distinction between the two torts;

In weaving together the various dicta from previous harassment cases, the court in this case, with its requirement of a “minimum threshold of seriousness”, seems to be driving towards a test similar to that expressed in Thornton v Telegraph Media Group Limited [2010] EWHC 1414 (QB), albeit with reference to a course of conduct that causes - say - alarm or distress, as opposed to reference to a publication that is capable of being be defamatory.

Despite these tweaks from Sir David, harassment will continue to remain an attractive alternative to libel for claimants: there is no specific pre-action protocol, a six-year limitation period (as opposed to one year for defamation and malicious falsehood), and, providing that a claimant can convince the court that the strict rules militating against the grant of injunctions in libel cases aren’t being circumvented by ploy or stealth, interim injunctions are much easier to obtain.

[aamodt]

Court Out

(This article first appeared in New Law Journal (https://www.newlawjournal.co.uk))

As lawyers know there are all sorts of courts and tribunals in the United Kingdom whose function depends on the matter to be decided. For the most part they derive their existence and the limits of their powers from statutes and statutory instruments. They are familiar to us: the Employment Tribunal, the Upper Tribunal (Lands Chamber), the First-Tier Tax Tribunal, and so forth. They all have their quirks and idiosyncrasies. Of all the courts in the United Kingdom, however, none is quite as unusual as the Election Court.

The law expressly allows people to question the outcome of parliamentary elections as well as European Parliament elections, local elections, Welsh assembly elections and local referendums by presenting a petition, which is essentially a claim form, that sets out the reasons for questioning the election and the relief that is sought by the petitioner.

To be able to petition - by way of example - a parliamentary election, the petitioner needs to be one of the following:

a person who voted (or could have voted) at the election 

a person who had the right to be elected at the election 

a person alleging to have been a candidate at the election

For cases in England and Wales, The petition needs to be submitted quickly (there is a very short time of twenty-one days) to the High Court.

This is when, Brigadoon-like, the Election Court comes into existence, having not technically existed at all before the presentation of the petition. The court is actually defined as "two judges on the rota for the trial of parliamentary election petitions" (Representation of the People Act 1983, s.123(1)). The judges on the rota in question come from the Queen's Bench Division. Having two judges essentially creates a species of Divisional Court, and the legislation stipulates that if the two judges differ as to whether the member whose election is the subject matter of the petition has been duly elected and returned, the member is deemed to have been duly elected and returned, i.e. both judges must agree if the election is to be invalidated (in local election cases the court will be a single experienced lawyer siting as an Election Commissioner (s.130))

The basis of a petition to question an election needs to be specific and within prescribed criteria. It is (predictably) not enough to say "I disagree with the result", otherwise the Elections Court would be awash with petitions. There must be a cogent and recognised basis for the petition. Very broadly, the bases include (1) an allegation that there has been a corrupt and/or illegal practice or practices (2) that the returned candidate was ineligible to stand (3) that a nomination paper has been wrongly held to be invalid by the returning officer (4) that there should be a recount on the basis that there has been a miscount. Acts and/or omissions that are substantially in accordance with the law and did not effect the result are not capable of leading to a finding that the election was invalid, i.e. minor and trivial breaches are distinguished. The complaint must be a substantial one

Corrupt Practices and Illegal Practices are two categories containing proscribed behaviour that are (mainly) unique to election law and are also criminal offences. "Corrupt Practices" - as one might expect - is the more serious category and contains among other things :

making a false declaration about election expenses;

bribery;

treating (providing "meat, drink and entertainment" for the purpose of corruptly influencing a person (mere refreshments don't count, nor, it would seem, do fruit and vegetables ...);

undue influence (including so-called "spiritual influence", i.e. clergy promising rewards in the afterlife for voting in a particular way);

“Illegal Practices” include:

knowingly incurring an expense in excess of the maximum permitted;

making an inaccurate expenses return; 

disturbing a meeting;

making a false statement about the personal conduct or character of a candidate .

Corrupt Practices are triable on indictment, Illegal Practices are triable summarily. To make things more confusing, the Venn diagram also includes other existing offences that are also either Corrupt or Illegal Practices. And then – even more confusingly – there are offences that are neither Corrupt nor Illegal Practices.

Also unique to the Election Court is the delightfully named practice of "a scrutiny", which is used by the Court to work out, by adding votes or subtracting votes, the total number of lawful votes. If there have been votes from ineligible persons (because they were disqualified, underage, etc.) then those votes would need to be discounted.

At the conclusion of the hearing there are two options available to the Election Court : declare the candidate duly returned, or declare the election void. The voiding of elections has been a rare occurrence. When Phil Woolas's election was voided in 2010 by the Election Court on the basis that he had made a false statement (an Illegal Practice) it was reported as being the first such occurrence in almost 100 years. More recently in 2015, the Mayor of Tower Hamlets, Lutfur Rahman, had his election voided on the basis that he had been guilty of Corrupt and Illegal Practices. The Election Court it would seem, unlike Brigadoon, is not fading back into the mist just yet.

[aamodt]

The "Johnson" zone and "Malik" claims: what are they and why do they matter?

In 1997 the House of Lords handed down a judgement in the now famous case of Malik v BCCI (in liquidation) [1997] IRLR 462. It was something of an atom bomb for employment lawyers. For years, it had been assumed that owing to an earlier House of Lords case called Addis v Gramophone Co Ltd [1909] AC 488 that it was not possible to claim damages relating to, among other things, the humiliating manner of a dismissal. In that case the plaintiff, who sued for wrongful dismissal (unfair dismissal did not exist yet), claimed (1) salary for a sixth-month notice period (2) reasonable commission for that six-month period (3) general damages for the humiliating manner of the dismissal and (4) general damages for the loss of reputation that created problems for finding further employment. The House of Lords said (1) and (2) were recoverable but that (3) and (4) were not.

In Malik, which was neither a case of wrongful nor unfair dismissal, the claimants sought damages in respect of injury to their reputation (the defendant having conducted a dishonest or corrupt business) and the consequent problems that would cause them in seeking new employment (in essence head (4) of the Addis claim). The House of Lords held, as is now widely known, that a so-called implied term of trust and confidence could be said to have evolved and that the defendant was in breach of that implied term.

Although the case was (1) not one relating to a dismissal but rather one for breach of contract during employment and (2) the House of Lords made it clear that the facts of the case were extreme, employment lawyers became very excited. Here was a new kind of wrongful dismissal damages that was not subject to the unfair dismissal cap and which seemed to open up a new horizon of possibilities.

The courts proceeded to slam the fingers of claimants, seeking to extemporise on the Malik riff, in a series of heavy judicial piano-lids. In French v Barclays Bank plc [1998] IRLR 646, the Court of Appeal held that Malik was not meant to open the door to awards for injury to feelings, being in French merely “anxiety and stress”. In Johnson v Unisys Ltd [2001] ICR 279 the House of Lords went further and held that a wrongful dismissal claim could not give rise to Malik damages either. The facts of Johnson were that the claimant had suffered stress caused by work before he was summarily dismissed. He brought a claim for unfair dismissal and won. He then brought a separate claim for wrongful dismissal for nearly £400,000 and alleged that as a consequence of the dismissal he had had a nervous breakdown and had been unable to work (pitching the claim - in effect - as injured feelings (contra French) and future financial loss, and thus not in the canonical Malik “stigma” fashion). The House of Lords said: no, this cannot be claimed. They held that stigma damages had to be confined to the case of an employee suing an employer for a breach of an implied term that had occurred during employment and that such damages could not be available on termination (in this case the wrongful dismissal claim). This was for two reasons: (1) the implied term of trust and confidence was designed to keep a contract going, not as a mechanism to be relied on in the event of a wrongful dismissal; (2) parliament had already provided a statutory remedy in the form of unfair dismissal. To widen the law for wrongful dismissal in the way that the claimant sought would be to allow a side-stepping of the remedy that parliament had intended in such circumstances. Thus was born the Johnson zone of exclusion.

The Johnson case immediately raised a question: what is meant by “on termination”? How much does that encompass? Just the occasion of dismissal or anything antecedent to that as well? Dismissal is usually part of a process. Would that mean that the process was in the Johnson zone of exclusion too? In Eastwood & anor v Magnox plc [2004] ICR 1064 the House of Lords (Lord Nicholls of Birkenhead cleaning up some of the lacunae he had left behind in Johnson) it was held that the zone related to the dismissal only. The facts of Eastwood were that the two claimants brought unfair dismissal claims that were settled but they reserved their right to bring a common law claim. The claimants issued proceedings in the County Court. They alleged that they suffered personal injuries in the form of psychiatric illnesses caused by a deliberate course of conduct by certain individuals using the machinery of the disciplinary process. The Tribunal and the Court of Appeal held that the action fell within the Johnson exclusion zone. The House of Lords disagreed. It held by Lord Nichols that the loss with regard to Johnson arises when an employee is dismissed:

Exceptionally, financial loss may flow directly from the employer’s failure to act fairly when taking steps leading to dismissal. Financial loss flowing from suspension is an instance. Another instance is cases such as those now before the House, when an employee suffers financial loss from psychiatric or other illness caused by his pre-dismissal unfair treatment. In such cases the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal. In respect of his subsequent dismissal he may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a tribunal he cannot recover any overlapping heads of loss twice over [¶29] (see also the earlier case of Gogay v Herts CC [2000] IRLR 703 CA for a similar kind of distinction being made).

Johnson was revisited again in Edwards v Chesterfield NHS [2011] UKSC 58 where the Supreme Court held 4-3 (and by means of not altogether aligned and cogent reasoning) that breaches of express terms of employment that lead directly to a dismissal also come within the Johnson zone, despite the fact that those breaches occurred before the dismissal. Johnson had been concerned with an implied term, and thus, following Edwards, implied and express terms are both potentially within the zone.  

What about constructive dismissal?

The Johnson exclusion zone also raises questions with regard to constructive dismissal. Constructive dismissal is explicitly dealt with under the unfair dismissal provisions of the Employment Rights Act 1996, s.98 ( 1 ) ( c ). (Side note: there is a bizarre paradox with regard to Malik & Johnson in that the implied term of trust and confidence, which, so the House of Lords held in Johnson, is designed to keep a contract going and therefore cannot be used as a common-law remedy for breach re. dismissal, also forms the basis for an employee arguing that the conduct of an employer has been repudiatory and therefore the employee is entitled to consider herself dismissed)

To what extent then do the statutory provisions cut across any common-law actions that might arise from pre-dismissal conduct by an employer, which would also form part of the rationale and justification for claiming constructive dismissal? 

These issues were addressed in In GAB Robins (UK) Ltd v Triggs 2008 ICR 529, CA. The claimant raised two matters by way of grievance: an allegation of bullying by a senior manager, and being overworked, both of which led to her suffering anxiety and depression. She was dissatisfied with her employer’s response and consequently resigned, bringing a tribunal claim for unfair constructive dismissal in respect of which she claimed damages for future loss of earnings on the basis that her employer had breached the implied term of mutual trust and confidence. An Employment Tribunal awarded her compensation on the basis that she had been prevented from working on account of an illness that began prior to the date of her dismissal, and it was the employer’s repudiatory course of conduct that had caused the employee’s ill health in the first place. Her consequent loss of earnings was therefore attributable to action taken by the employer within the meaning of S.123 of the Employment Rights Act 1996 under which the compensatory award for unfair dismissal is payable.

However, when the matter reached the Court of Appeal it ruled that the approach adopted by the tribunal was wrong in principle and could not be reconciled with the guidance provided by the House of Lords in the Eastwood case. The employee’s reduced earning capacity by reason of her illness was not a loss suffered by her ‘in consequence of the dismissal’ within the meaning of S.123. It was correct that the dismissal was a constructive one, in that it was the result of and followed upon the employee’s acceptance of the employer’s antecedent breaches of the implied term of trust and confidence that had caused her illness and, in turn, her reduced earning capacity. But it was fallacious to regard those antecedent breaches as constituting the dismissal. The dismissal was effected purely and simply by her decision that she wished to discontinue her employment. On a claim for unfair dismissal, that entitled her to compensation for whatever loss flowed from that dismissal. But that loss did not include loss flowing from wrongs already inflicted upon her by the employer’s prior conduct. Those losses (including any future lost income) were caused by the antecedent breaches of the implied term as to trust and confidence and the employee had an already accrued right to sue for damages in respect of them before the dismissal.

Following the Court of Appeal’s decision in the GAB Robins case it therefore seems that, in a case of unfair constructive dismissal, damages for breaches of the implied term of trust and confidence  which lead to an employee’s resignation cannot form part of the unfair dismissal compensatory award. They would need to be claimed separately. 

The issue of the Johnson zone and constructive dismissal was considered again in Gebremariam v Ethiopian Airlines Enterprise t/a Ethiopian Airlines 2014 IRLR 354, EAT, where the EAT confirmed that the Johnson exclusion does not preclude a claim for constructive dismissal based on the employer’s conduct in proposing but then withdrawing a dismissal. In that case the employer notified the claimant that she was to be dismissed as redundant but then withdrew that decision after she appealed. The claimant sought to claim unfair constructive dismissal in relation to the way that her dismissal had been announced without any consultation or selection exercise. A tribunal rejected her claim. Although it accepted that the redundancy process entailed a breach of the implied term of trust and confidence, the fact that the employer withdrew the decision on appeal meant that the breach did not continue up to the point at which the claimant sought to rely on it as repudiating her contract. When the claimant appealed against this conclusion, the employer introduced a cross-appeal, arguing that any breach of trust and confidence within the redundancy procedure was necessarily caught by the Johnson exclusion. The EAT rejected this argument. It was unaware of any authority applying the Johnson principle to constructive dismissal. In its view, at the time of the acts complained of, the claimant was not dismissed and so the rule in Johnson was not engaged. The EAT could see no basis for preventing an employee relying on the employer’s actions in relation to a decision to dismiss that the employer does not then pursue and which does not result in a dismissal. The EAT also observed that the Johnson exclusion zone applies to common law claims that conflict with the statutory jurisdiction of unfair dismissal. There was no such conflict here - the claimant was not seeking any common law Malik remedy, she was seeking to rely on her employer’s breach of contract in order to establish her unfair constructive dismissal claim only.

So where does this leave us?

The first and perhaps most obvious point is that Malik claims are not - as the cases show - just limited to claims of stigma resulting from the way an employer has conducted itself, à la BCCI. The claim is more precisely described as a common law claim for foreseeable general damages resulting from a breach the implied term of trust and confidence and that is not connected with the manner of the dismissal. It is for that reason that claims for psychiatric illness (q.v. Edwards and Triggs) have been allowed.

The decisions of Triggs and Gogay create a strange consequence: an employer will be better off simply dismissing an employee and facing an unfair dismissal claim (and the cap on damages), then merely suspending an employee (no dismissal has occurred, and thus any harm associated with the suspension is not in the Johnson exclusion zone and claimable in the civil courts with no cap).

If a claimant is claiming unfair dismissal (including constructive dismissal) but is also seeking to launch a common law claim with respect to pre-dismissal Malik breaches, then there will a need to be two separate claims. Given the £25,000 limit on contract claims in the Employment Tribunal and the fact that there can be no awards in respect of personal injury (Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994), the Employment Tribunal seems the wrong venue to bring such a claim if a claimant is seeking high damages for psychological harm (i.e. personal injury). (Note: this is entirely separate from the power of the Employment Tribunal to award damages for injury to feelings and injury to health in discrimination cases, being a non-contractual matter and also governed by the Equality Act 2010). There is also the interesting issue of whether the wording of the 1994 order creates a potential Johnson problem before a claim has been made: Article 3© states that the claim must “arise or is outstanding on the termination of the employee’s employment.” The best venue to commence the common-law claim will undoubtedly be the County Court or High Court.

The distinction between pre-dismissal events and dismissal events is an easy one to make in theory but a hard one to make in practice. This will be especially the case with regard to psychological injury, causation, and timing. Malik psychological damage that occurs on dismissal will be in the Johnson zone while psychological damage that occurs before the dismissal will not. That presents difficult questions for Tribunals and Courts. Was the harm that resulted related to a “last straw” scenario? Or was it something that started before the event that lead to the employee deciding that she was dismissed?